Prakash Jha v Capgemini Australia Pty Limited

[2021] FWC 3094

[2021] FWC 3094

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Prakash Jha
v
Capgemini Australia Pty Limited
(U2021/2058)

VICE PRESIDENT CATANZARITI SYDNEY, 28 MAY 2021

Application for an unfair dismissal remedy.

[1] Prakash Jha (the applicant) made an application with the Fair Work Commission (the Commission) on 11 March 2021 for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] On 6 April 2021, Capgemini Australia Pty Limited (the respondent) filed an Employer Response (form F3) objecting to the application on the grounds that the applicant had earnt more than the high-income threshold and in the alternative the dismissal was a case of genuine redundancy.

[3] On 29 April 2021, correspondence was sent by my chambers to the applicant that it appeared he may have earnt above the current high income threshold of $153,600 per annum based on the information contained in the Form F3. The correspondence required the applicant to file a statement within seven days to support his claim of having earnt less than the high income threshold and/or being covered by a modern award or enterprise agreement.

[4] On 7 May 2021, correspondence was sent to the applicant noting that he had previously been directed to file a statement in support of his claim that he had earnt less than the high income threshold but had not done so. The applicant was given until 4:00pm on 12 May 2021 to respond. The applicant was advised that in the absence of any material being received, his application may be dismissed.

[5] On 12 May 2021, the applicant wrote to my chambers requesting an extension to provide a response. An extension was granted to the applicant and he was advised by my chambers in an email dated 13 May 2021 that his response was due by 17 May 2021.

[6] My chambers sent further correspondence to the applicant on 20 May 2021 noting that we had not received a response. The applicant was advised that in the absence of a reply by 26 May 2021 his application would be dismissed given an extension was previously granted to him.

[7] To date, the applicant has not provided a response to the Commission regarding the high income threshold jurisdictional objection.

[8] 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.”

[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.

VICE PRESIDENT

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