Mr John Glenn v The Goodguys Discount Warehouse Pty Ltd

[2017] FWC 6255

[2017] FWC 6255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr John Glenn
v
The Goodguys Discount Warehouse Pty Ltd
(U2017/10436)

DEPUTY PRESIDENT DEAN SYDNEY, 28 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 26 September 2017, Mr John Glenn made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Glenn’s application states that he commenced employment with The Goodguys Discount Warehouse Pty Ltd (the Respondent) in July 2008 and that his dismissal took effect on 30 August 2017, however was not notified of his dismissal until 5 September 2017.

[3] The Respondent states in their Form F3 Employer’s Response to Unfair Dismissal Application that Mr Glenn was notified of his dismissal on 28 August 2017 and that the dismissal took effect on 30 August 2017. As Mr Glenn’s application was lodged on 26 September 2017, the Respondent raised a jurisdictional objection on the grounds that the application was filed six days outside the 21 day period prescribed by s.394(2) of the Act.

[4] On 8 November 2017, correspondence was sent to Mr Glenn advising that based on the information provided, it appeared his application may be out of time. The correspondence required Mr Glenn to file in the Fair Work Commission (the Commission) a statement in response to the Respondent’s jurisdictional objection.

[5] On 16 November 2017, correspondence was sent to Mr Glenn noting that he had previously been directed to file a statement in the Commission but had not done so. Mr Glenn was given until 4pm on 20 November 2017 to respond. Mr Glenn was advised in the absence of any material being received, his application may be dismissed.

[6] On 23 November 2017 and 27 November 2017, final attempts to contact Mr Glenn by telephone were made. The Commission left voicemail messages for Mr Glenn to contact the Commission as a matter of urgency.

[7] I also note that a Fair Work Commission conciliator attempted to contact Mr Glenn by telephone on 1 November 2017 and 2 November 2017 and left voicemail messages for him to urgently contact the Commission.

[8] To date, Mr Glenn has not replied to any of the Commission’s correspondence or communication as outlined above.

[9] Section 587 of the Act is in the following terms:

“587 Dismissing applications

(1) Without limiting when FWC may dismiss an application, 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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[10] The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[11] In all the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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