Nathan Forslun v BHP Group Limited

[2023] FWC 3436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nathan Forslun
v

BHP Group Limited

(U2023/10451)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 DECEMBER 2023

Application for an unfair dismissal remedy

Nathan Forslun (the Applicant) was employed by BHP Group Limited (the Respondent) from 1 December 2021 until he was dismissed on 20 October 2023.

On 25 October 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was BHP Iron Ore Pty Ltd.

The Respondent also raised an objection in the F3 – Employer’s Response Form stating that the Applicant earned higher than the income threshold, stating the Applicant earned $167,500.
On 5 December 2023, correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and he was required to respond by 13 December 2023. No response was received at this time.

Further correspondence was sent to the Applicant on 15 December 2023 and he was required to respond by 5:00pm on 19 December 2023. It was in this correspondence that the Applicant was advised his application would be dismissed without any notice if no response was received.

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 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

CaseChat Overview and Summary

Nathan Forslun, the Applicant, lodged a claim for unfair dismissal against BHP Group Limited, the Respondent, after being dismissed from his position on 20 October 2023. The Applicant had been employed by the Respondent since 1 December 2021. He applied for a remedy under s.394 of the Fair Work Act 2009, claiming that his dismissal was unfair. The Respondent contested the application on the basis that the Applicant's income exceeded the threshold for the application, and raised jurisdictional issues regarding the appropriate entity to be named in the proceedings. The case was heard by Vice President Catanzariti at the Fair Work Commission.

The central legal issue before the court was whether the Fair Work Commission had jurisdiction to hear the Applicant's unfair dismissal claim, given the Respondent's objection to the Applicant's income level and the naming of the wrong entity in the proceedings. The court needed to determine whether the application was frivolous or vexatious, had no reasonable prospects of success, or was not made in accordance with the Act. Additionally, the court had to consider whether the application should be dismissed for want of prosecution due to the Applicant's failure to respond to correspondence and jurisdictional notices.

The court found that the Applicant had not responded to any of the correspondence sent by the Vice President's chambers, despite multiple opportunities to do so. The court noted that under s.587 of the Act, the Commission has broad powers to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The court concluded that the Applicant's failure to respond to correspondence and jurisdictional notices indicated that his application had no reasonable prospects of success and was not being pursued with due diligence. Therefore, the court decided to dismiss the application for want of prosecution under s.587(3)(a) of the Act.

The court ordered that the Applicant's application for a remedy for unfair dismissal be dismissed. This decision underscores the importance of responding to jurisdictional issues and notices in a timely manner, as failure to do so can result in the dismissal of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established