Pero Kopistinskij v Booth Transport Pty Ltd T/A Booth Transport

[2021] FWC 3986

[2021] FWC 3986

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pero Kopistinskij
v
Booth Transport Pty Ltd T/A Booth Transport
(U2021/5313)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 8 JULY 2021

Application for unfair dismissal remedy – Jurisdiction - Extension of Time – Application dismissed – s.587.

[1] On 18 June 2020, the Fair Work Commission (the Commission) received an application from Mr Pero Kopistinskij for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act), in respect of his employment with Booth Transport Pty Ltd trading as Booth Transport.

[2] The Applicant’s employment was terminated by the Respondent with effect from 25 May 2021. Based on a termination date taking effect on 25 May 2021, the application for a remedy should have been lodged by no later than 15 June 2021.

[3] The application was therefore lodged outside of the time prescribed. The application was made in effect, 3 days after the last date on which it could have been made. The FW Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances (Jurisdictional Issue).

[4] On 24 June 2021, a Notice of Listing was issued to the parties listing the matter for Jurisdictional Hearing (Extension of Time) on Tuesday, 6 July 2021. The Notice of Listing also contained Directions for Mr Kopistinskij to file a witness statement addressing the Jurisdictional Issue, namely:

•  the reason for the delay,

•  whether the Applicant first became aware of the dismissal after the date it took effect,

•  any action taken by the Applicant to dispute the dismissal,

•  prejudice to the Respondent including prejudice caused by the delay,

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[5] The witness statement was required to be filed by no later than 04:00 pm AEST on Friday, 2 July 2021. The Applicant did not file a witness statement as directed.

[6] On 5 July 2021, my Chambers sent an email advising Mr Kopistinskij that he was in breach of the Directions I had issued and that he would need to provide an explanation of his non-compliance during the Extension of Time Hearing. Mr Kopistinskij was also advised that the Jurisdictional Issue would be dealt with during the Jurisdictional Hearing (Extension of Time).

[7] On 6 July 2021, Mr Kopistinskij did not make an appearance at the Jurisdictional Hearing (Extension of Time). I advised the Respondent that an email would be sent requiring Mr Kopistinskij’s response as to why he failed to attend. At the conclusion of the Jurisdictional Hearing (Extension of Time) an email was sent to Mr Kopistinskij requiring his response by no later than 1:00 pm AEST. Mr Kopistinskij was advised in this email that the matter may be dismissed for want of prosecution without further advice to him, as well as dismissed for failing to meet the statutory tests for an extension of time. No response was received.

[8] Section 587 of the FW 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.”

[9] 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).

[10] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. I add that if the Respondent had applied as required by s.399A(2) I would have also decided to dismiss the application for breach of directions pursuant to s.399A(1)(b).

DEPUTY PRESIDENT

Appearances:

Ms J Booth and Ms L McDonald or the Respondent

Hearing details:

2021

Melbourne (via teleconference)

6 July

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