Rapana Ngaau v Visy Board Pty Ltd

[2020] FWC 2889

[2020] FWC 2889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rapana Ngaau
v
Visy Board Pty Ltd
(U2020/2711)

VICE PRESIDENT CATANZARITI SYDNEY, 2 JUNE 2020

Application for an unfair dismissal remedy.

[1] Rapana Ngaau states he was employed by Visy Board Pty Ltd (the respondent) from 24 October 2018 until his dismissal took effect on 20 February 2020. On 9 March 2020, he applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 1 April 2020, the respondent filed an Employer’s Response (Form F3), objecting to Mr Ngaau’s application on the basis that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The respondent said that the applicant only started working for it on 28 August 2019.

[3] The application was listed before a Commission staff conciliator on 8 April 2020. The applicant did not attend the conciliation.

[4] The application was then allocated to me. My chambers sent correspondence to the applicant on 23 April 2020, directing him to advise us by 4:00 pm on 30 April 2020 whether he still pressed his application. The applicant did not respond by that time.

[5] On 1 May 2020, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00 pm on 6 May 2020. The applicant advised my chambers by email on 5 May 2020 that he would like to proceed.

[6] My chambers wrote to the applicant again on 6 May 2020, requiring him to provide a statement to support his claim that he had completed the minimum employment period. He was asked to provide this information by 4:00 pm on 13 May 2020. The applicant acknowledged receipt of this correspondence the same day it was sent. However, we received no substantive response by the deadline.

[7] On 14 May 2020, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00 pm on 19 May 2020. He was advised that in the absence of a reply, his application may be dismissed.

[8] To date, the applicant has not responded substantively to the Commission’s letter of 6 May 2020.

[9] 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.2

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[10] 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).

[11] 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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