Peter Van Velzen v Mt. Gravatt Coach and Travel Pty. Ltd

[2023] FWC 3437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Van Velzen
v

Mt. Gravatt Coach And Travel Pty. Ltd.

(U2023/10781)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 DECEMBER 2023

Application for an unfair dismissal remedy

Peter Van Velzen (the Applicant) was employed by Mt. Gravatt Coach and Travel Pty. Ltd. (the Respondent) from 23 October 2020 until he was dismissed on 2 November 2023.

On 3 November 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 Fenlane Pty Ltd.
On 5 December 2023, correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and he was required to respond by 12 December 2023. No response was received at this time.
Further correspondence was sent to the Applicant on 13 December 2023, and he was required to respond by 5:00pm on 19 December 2023. It was in this correspondence that the Applicant was advised his application would be dismissed without any notice if no response was received.
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.

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, “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

Peter Van Velzen, the applicant, sought a remedy for unfair dismissal against Mt. Gravatt Coach and Travel Pty. Ltd., the respondent, after his employment was terminated on 2 November 2023. The applicant filed an application for unfair dismissal under section 394 of the Fair Work Act 2009 on 3 November 2023. The respondent, under the legal business name Fenlane Pty Ltd, filed its response on 3 November 2023. The Fair Work Commission, presided over by Vice President Catanzariti, was tasked with resolving this dispute.

The primary legal issue before the Commission was whether the applicant's dismissal was unfair under the Fair Work Act 2009. A secondary issue that arose was the applicant's failure to respond to correspondence regarding the jurisdictional issue and the dismissal of his application without notice. This non-compliance with procedural requirements was a significant factor in the Commission's decision-making process.

The Commission found that the applicant had not responded to any correspondence sent by the Commission, despite multiple opportunities to do so. Given the applicant's failure to engage with the proceedings and the clear directives provided to him, the Commission exercised its discretion under section 587(3)(a) of the Act to dismiss the application for want of prosecution. The Commission held that the applicant's inaction effectively precluded the matter from proceeding, leading to the dismissal of the application without further consideration of the merits of the unfair dismissal claim.

The Commission issued an order dismissing the application for unfair dismissal, reflecting the procedural failure and lack of engagement by the applicant. The dismissal was made without prejudice to any rights the applicant may have to reapply if he addresses the procedural shortcomings in any future application.

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