Nathan Harkness v Integratedliving Australia Ltd

[2023] FWC 1205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nathan Harkness
v

Integratedliving Australia Ltd

(U2023/3412)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 MAY 2023

Application for an unfair dismissal remedy.

Nathan Harkness (the applicant) was employed by Integratedliving Australia Ltd (the respondent) from the 30^th of October 2017 until he was dismissed on the 24^th of March 2023.

On the 20^th of April 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The application was lodged on the 20^th of April 2023, which made the application 6 days late.
On the 11^th of May 2023, correspondence was sent to the applicant in relation to the matter being lodged out of time and he was required to respond by the 16^th of May 2023.
On the 17^th of May 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 19^th of May 2023. He was advised that in the absence of a reply, his application may be dismissed.

The applicant has not responded to any of the correspondence that my Chambers has sent to this date.

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.

(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.

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 Harkness filed an application for unfair dismissal against Integratedliving Australia Ltd, under Section 394 of the Fair Work Act 2009. The applicant, who was employed by the respondent from October 30, 2017, until his dismissal on March 24, 2023, made the application on April 20, 2023, which was six days late. The Commission issued correspondence to the applicant on May 11, 2023, highlighting the late lodging of the application and requesting a response by May 16, 2023. Further correspondence was sent on May 17, 2023, directing the applicant to respond by 5:00 pm on May 19, 2023, or risk the dismissal of his application. The applicant did not respond to any of the correspondence sent by the Commission.

The legal issues before the court involved whether the application could be dismissed for being lodged outside the prescribed time and whether the application had been properly prosecuted. The court had to consider the provisions of Section 587 of the Act, which provides the circumstances in which an application may be dismissed. The court also had to consider the authority of the Commission to dismiss an application on its own initiative under Section 587(3)(a) of the Act.

In its reasoning, the court noted that the words "Without limiting when the FWC may dismiss an application" at the commencement of Section 587(1) of the Act established that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in Section 587(1)(a), (b) and (c). The court found that the applicant had failed to respond to correspondence sent by the Commission and had not made any efforts to prosecute the application. Therefore, the court decided to dismiss the application for want of prosecution under Section 587(3)(a) of the Act.

An order will be issued with this decision dismissing the application for unfair dismissal.

CaseChat Overview and Summary

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