Nicholas Burnet v City Facilities Management (Aus) Pty Ltd

[2023] FWC 2045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicholas Burnet
v

City Facilities Management (Aus) Pty Ltd

(U2023/4707)

VICE PRESIDENT CATANZARITI

SYDNEY, 16 AUGUST 2023

Application for an unfair dismissal remedy.

Nicholas Burnet (the applicant) began employment with City Facilities Management (Aus) Pty Ltd (the respondent) on the 2^nd of June 2022 and was allegedly dismissed on the 29^th of May 2023.
On the 30^th of May 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 City Cleaning Services (Aus) Pty Ltd.
On the 14^th of July 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 21^st of July 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 24^th of July 2023, and he was required to respond by the 26^th of July 2023 at 5:00pm. It was in this correspondence the applicant was notified that if no response was received, his application would be dismissed without any 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.

(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

Nicholas Burnet filed an application for unfair dismissal against City Facilities Management (Aus) Pty Ltd (referred to as the respondent) under section 394 of the Fair Work Act 2009. The applicant, who began his employment with the respondent on 2 June 2022, claimed that he was dismissed on 29 May 2023. The respondent's legal business name, as stated in their F3 – Employer’s Response Form, was City Cleaning Services (Aus) Pty Ltd. The applicant submitted his application for a remedy on 30 May 2023. Throughout the proceedings, there was an issue concerning the discrepancy in the legal business name of the respondent, which led to several correspondences being sent to the applicant requesting responses to the discrepancies. Despite the reminders, the applicant failed to respond to any of the correspondences, leading to the application being dismissed.

The central legal issue the court had to address was whether the applicant's failure to respond to the correspondences warranted the dismissal of the application under section 587 of the Fair Work Act 2009. This section allows the Fair Work Commission (FWC) to dismiss an application if it is not made in accordance with the Act, if it is frivolous or vexatious, or if it has no reasonable prospects of success. Additionally, the court had to consider the broader jurisdiction of the FWC to dismiss an application, as established by section 587(1) of the Act, which indicates that the FWC's power to dismiss an application is not confined to the specific circumstances outlined in subsections (1)(a), (b), and (c). The court also had to determine whether the dismissal of the application for want of prosecution was appropriate under section 587(3)(a) of the Act.

In deciding to dismiss the application, the court relied on the applicant's failure to respond to multiple correspondences regarding the legal business name discrepancy. The court found that this non-response justified the dismissal of the application for want of prosecution. The court noted that the words "Without limiting when the FWC may dismiss an application" in section 587(1) of the Act confirmed the broad jurisdiction of the FWC to dismiss an application. The court concluded that the applicant's failure to respond to the correspondences constituted a lack of prosecution, thereby warranting the dismissal of the application. Consequently, the court decided to dismiss the application in line with section 587(3)(a) of the Act.

An order will be issued with this decision, dismissing the application for unfair dismissal due to the applicant's lack of prosecution.

CaseChat Overview and Summary

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Legal Principle Established