Peter Dunning v The Trustee for ARCD Repair Centre Trust Summary

[2023] FWC 2766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Dunning
v

The Trustee for ARCD Repair Centre Trust

(U2023/7349)

COMMISSIONER BISSETT

MELBOURNE, 23 OCTOBER 2023

Application for an unfair dismissal remedy

On 9 August 2023 Mr Peter Dunning (the Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act) alleging he was unfairly dismissed by The Trustee for ARCD Repair Centre Trust (the Respondent).

On 5 September 2023 the Commission was made aware that the Respondent had entered external administration. On 13 September 2023 the Commission was made aware that the Respondent is subject to a Court liquidation.

Later that day, the Commission sent correspondence to Mr Dunning advising him that although leave of the Court is not required, it is my ‘preliminary view that there is little utility in continuing with [his] application’ because the Respondent is insolvent. Mr Dunning was asked to provide any submissions as to why his matter should continue to be dealt with by the Commission by 12.00 pm (noon) on 20 September 2023.

The Commission has not received any correspondence from Mr Dunning.

Section 587 of the FW Act provides as follows:

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.

In the circumstances where it is my view that there is little utility in continuing the application and Mr Dunning has failed to provide any submissions or any further correspondence to the Commission, I am satisfied that Mr Dunning’s application has no reasonable prospects of success.

The application is therefore dismissed.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Peter Dunning v The Trustee for ARCD Repair Centre Trust, the applicant, Mr. Dunning, filed an application for unfair dismissal remedy under section 394 of the Fair Work Act 2009. The dispute involved Mr. Dunning's allegation that he was unfairly dismissed by the respondent, The Trustee for ARCD Repair Centre Trust. The Commission was subsequently informed of the respondent's entry into external administration and subsequent liquidation, which significantly impacted the proceedings. Mr. Dunning was invited to submit any reasons why his application should continue, but failed to do so, prompting the Commission to consider the matter further.

The legal issues that the Commission needed to address included whether the application should be dismissed due to the respondent's insolvency and whether the application had any reasonable prospects of success. The Commission noted that section 587 of the Fair Work Act authorizes the dismissal of an application if it is frivolous or vexatious, or if it lacks reasonable prospects of success. Given the respondent's insolvency and Mr. Dunning's failure to respond to the Commission's correspondence, it was determined that the application had no reasonable prospects of success. The Commission concluded that continuing with the application would serve little utility, leading to the decision to dismiss the application.

In reaching its decision, the Commission considered the implications of the respondent's insolvency and Mr. Dunning's inaction. The Commission concluded that, under the circumstances, the application was unlikely to succeed, and there was no justification to proceed. The application was thus dismissed based on the lack of reasonable prospects of success. No further action will be taken on Mr. Dunning's application for unfair dismissal.

Peter Dunning v The Trustee for ARCD Repair Centre Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established