Randall Smith v GeoDrill Australia

[2020] FWC 3059

[2020] FWC 3059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Randall Smith
v
GeoDrill Australia
(U2019/14382)

VICE PRESIDENT CATANZARITI SYDNEY, 11 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 20 December 2019, Randall Smith (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, ‘GeoDrill Australia’.

[2] The application was listed before a Commission staff conciliator on 10 February 2020. The applicant did not attend the conciliation.

[3] The application was then allocated to me. My chambers sent correspondence to the applicant on 2 March 2020, directing him to advise us by 4:00 pm on 9 March 2020 whether he still pressed his application. However, we received no response from the applicant by that time.

[4] On 10 March 2020, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00 pm on 13 March 2020. He was advised that in the absence of a reply, his application may be listed for a non-compliance hearing, and may be dismissed.

[5] I listed this application for a non-compliance hearing on 21 May 2020. The applicant did not answer the telephone and therefore failed to participate in the hearing.

[6] To date, the applicant has not responded to any of the Commission’s correspondence, nor have my chambers heard further from him.

[7] 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.”

[8] 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).

[9] 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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