Norbert Fluri v BHP Billiton Nickel West Pty Ltd
[2022] FWCFB 35
•21 MARCH 2022
| [2022] FWCFB 35 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Norbert Fluri
v
BHP Billiton Nickel West Pty Ltd
(C2022/732)
| VICE PRESIDENT CATANZARITI | SYDNEY, 21 MARCH 2022 |
Appeal against decision [2022] FWC 1 of Commissioner Williams at Perth on 5 January 2022 in matter number U2021/5197 – appeal dismissed.
On 25 January 2022, Norbert Fluri (the Appellant) lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision[1] of Commissioner Williams issued on 5 January 2022.
On 31 January 2022, at the Appellant’s own initiative, he filed and served submissions with the Commission opposing the Respondent’s request for permission to be legally represented in these proceedings.
On 3 February 2022, the Appellant was directed to file and serve an outline of submissions addressing the requirement for permission to appeal only in the Commission by 24 February 2022. The Appellant did not file these submissions.
On 25 February 2022, the Vice President’s chambers sent correspondence to the Appellant advising that his submissions are due to be filed. We received no response from the Appellant.
On 3 March 2022, the Vice President’s chambers sent further correspondence to the Appellant advising him again that his submissions and appeal book were due to be filed with the Commission. This correspondence also indicated that if the Appellant’s submissions were not filed by 4 March 2022, his appeal may be dismissed without further notice. However, we received no response from the Appellant by that time.
The matter was listed for hearing on 9 March 2022. The Appellant did not attend the hearing.
The Vice President’s chambers sent correspondence to the Appellant on 9 March 2022, directing him to explain to the Full Bench by 11 March 2022 as to why he did not attend the hearing or make submissions. He was advised that in the absence of a reply, his application may be dismissed. We received no response from the Appellant by that time.
To date, the Appellant has not responded to any of the Commission’s correspondence.
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 ‘[w]ithout 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, we have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
VICE PRESIDENT
[1] Norbert Fluri v BHP Billiton Nickel West Pty Ltd [2022] FWC 1.
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