Phillip Ross Mclellan v Hudor Integrated Services Pty Ltd

[2023] FWC 2312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Phillip Ross Mclellan
v

Hudor Integrated Services Pty Ltd

(U2023/7359)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 SEPTEMBER 2023

Application for an unfair dismissal remedy.

Phillip Ross Mclellan (the applicant) was employed by Hudor Integrated Services Pty Ltd (the respondent) from the 29^th of November 2021 through to the 14^th of July 2023, when he was allegedly dismissed.

On the 9^th of August 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The application was lodged 5 days out of time.
On the 30^th of August 2023, correspondence was sent to the applicant in relation to the matter being lodged out of time and he was required to respond by the 4^th of September 2023. No response was received at this time.
On the 5^th of September 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 7^th of September 2023. He was advised in this correspondence that in the absence of a reply, his application may be dismissed.
The applicant has not responded to any of the correspondence that my Chambers has sent to this date.

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

Phillip Ross Mclellan, the applicant, applied for an unfair dismissal remedy against his former employer, Hudor Integrated Services Pty Ltd, the respondent. The application was lodged out of time, and despite multiple reminders and opportunities to respond, the applicant failed to address the issue of the late filing or provide any substantive response to the proceedings. The matter was heard by Vice President Catanzariti of the Fair Work Commission under the Fair Work Act 2009. The primary legal issue before the court was whether the application could be dismissed for being lodged beyond the statutory time limit and for the applicant's subsequent lack of response.

The court considered the provisions of section 587 of the Fair Work Act 2009, which outlines the circumstances under which an application may be dismissed. The court noted that the Act allows for the dismissal of an application not only if it is made outside the prescribed time frame, frivolous, vexatious, or lacking reasonable prospects of success, but also in other circumstances not specifically listed. The Vice President determined that the application was filed beyond the allowable time and that the applicant had not taken any steps to remedy this or respond to the Commission's communications. Given these facts, the Vice President concluded that the application should be dismissed for want of prosecution under section 587(3)(a) of the Act.

The court dismissed the application on the grounds that it was filed out of time and the applicant failed to engage with the proceedings despite multiple opportunities to do so. The decision underscores the importance of adhering to procedural requirements in applications for unfair dismissal and the consequences of failing to do so. The court's decision was made in accordance with the statutory provisions and the principles of procedural fairness. An order dismissing the application for want of prosecution was issued with the decision.

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