Mr Jason Johnson v Redline Plumbing Pty Ltd

[2014] FWC 3396

[2014] FWC 3396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Jason Johnson
v
Redline Plumbing Pty Ltd
(C2014/3674)

COMMISSIONER WILSON MELBOURNE, 21 MAY 2014

Application to deal with contraventions involving dismissal - Application dismissed.

[1] Mr Jason Johnson made an application to the Fair Work Commission dated 27 March 2014 alleging the contravention of Part 3 – 1 of the Fair Work Act 2009 (the Act) by his former employer Redline Plumbing Pty Ltd.

[2] The matter was assigned to me for the conduct of a conference pursuant to s.368 of the Act. The conference took place on 14 April 2014 by telephone.

[3] During the conference, it was noted that Mr Johnson’s general protections application was made out of time.

[4] Section 366 of the Fair Work Act 2009 (the “Act”) provides that a general protections application must be made within 21 days after the dismissal took effect, or within such further period as the Fair Work Commission allows under section 366(2). Item 1.2 of the application lodged by Mr Johnson records the date of dismissal as 20 December 2013. As the general protections application was lodged on 27 March 2014, the application was lodged outside of the 21 day time frame.

[5] During the conference, I advised the parties that in my view, if the Commission were to grant an extension of time to Mr Johnson for the making of his application, the application does not (on the face of the information that had thus far been presented) appear within the general protections provisions of the Act. Accordingly, I requested that Mr Johnson inform my Chambers within one week as to whether he wished to proceed with the matter.

[6] A follow up email was sent to Mr Johnson on 22 April 2014 requesting his advice as to whether he wished to proceed with the application, to be provided no later than 5:00 pm on 24 April 2014. No response was received from Mr Johnson.

[7] A further email was sent to Mr Johnson on 1 May 2014, requesting his advice as to whether he wished to proceed with the application, to be provided no later than 5:00 pm on 2 May 2014. A Notice of Discontinuance was attached to this email for Mr Johnson’s use in the event he wished to discontinue the matter. No response was received from Mr Johnson.

[8] A final email was sent to Mr Johnson on 12 May 2013, directing Mr Johnson to file with the Commission, and serve on the respondent, submissions providing reasons as to why the Commission should not dismiss his application, evidence or other documentary material he has to support his reasons. Mr Johnson was directed to file such material by no later than close of business on 20 May 2014. Mr Johnson was advised that if such material was filed by the due date, I would consider the submissions and may deal with the application on the papers. In the event that no material was filed by the due date, Mr Johnson’s general protections application would be dismissed pursuant to section 587 of the Act. A Notice of Discontinuance was attached to this email. No response was received from Mr Johnson.

[9] Section 587 of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[10] In light of the circumstances of this case, I consider it appropriate to dismiss Mr Johnson’s application on the basis that it has not been made in accordance with the Act, pursuant to sections 587(1)(a) and 587(3)(a) of the Act.

[11] As a result, I now dismiss Mr Johnson’s application. An Order to this effect will be issued in conjunction with this decision.

COMMISSIONER

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