Mr Sam Oliver v B&E Poultry

[2024] FWC 941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Sam Oliver
v

B&E Poultry

(U2024/2690)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 APRIL 2024

Application for an unfair dismissal remedy

Mr Sam Oliver (the Applicant) was employed by B&E Poultry (the Respondent) from 14 November 2022 until he was dismissed on 2 October 2023.

On 13 March 2024, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). On 18 March 2024 an amended application with further contact details for the respondent was received via post.

The Applicant’s application appeared to have been filed outside of the 21-day statutory timeframe by 142 days.

On 19 March 2024, email correspondence was sent to the Applicant in relation to the out of time issue and he was required to respond by 25 March 2024. No response was received at this time.
Further email correspondence was sent to the Applicant on 26 March 2024, and he was required to respond by 5:00pm on 2 April 2024. It was in this correspondence that the Applicant was advised the application may be dismissed without any notice if no response was received.

On 3 April 2024 the Commission attempted to contact the Applicant via telephone. However, the Applicant could not be reached. A voicemail message was left advising the Applicant to respond to the correspondence as soon as possible. The voicemail also warned that if he did not contact the Commission the application may be dismissed without further notice.

To date, the Applicant has not responded to any of the correspondence sent by my Chambers.

Section 587 of the Act provides:

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

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).

In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Mr Sam Oliver v B&E Poultry, the applicant, Mr Oliver, applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. He was employed by the respondent, B&E Poultry, from 14 November 2022 until his dismissal on 2 October 2023. The application was lodged 142 days outside the statutory 21-day timeframe. The Commission attempted to contact Mr Oliver on multiple occasions to address the issue of the late application but received no response.

The primary legal issue the Vice President was required to decide was whether to dismiss the application for being out of time, in accordance with section 587 of the Act. The Act provides that the Fair Work Commission may dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Additionally, the Commission has the discretion to dismiss an application on its own initiative if it is not one of the specified types exempt from dismissal on those grounds. Given that the application was significantly out of time and Mr Oliver failed to respond to multiple communications from the Commission, the Vice President concluded that dismissing the application was appropriate under section 587(3)(a).

The Vice President found that the application was made well outside the statutory timeframe and that the Applicant had failed to respond to multiple communications from the Commission regarding the out-of-time issue. The Vice President dismissed the application for want of prosecution pursuant to section 587(3)(a) of the Fair Work Act 2009. An order dismissing the application will issue with this decision.

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