Remy McRae v Mingara Leisure Group Summary

[2023] FWC 1577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Remy McRae
v

Mingara Leisure Group

(U2023/2812)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 JUNE 2023

Application for an unfair dismissal remedy.

Remy McRae (the applicant) began employment with Mingara Leisure Group (the respondent) on the 27^th of June 2022 and was allegedly dismissed on the 14^th of March 2023.
On the 2^nd of April 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 Mingara Recreation Club Ltd.
On the 14^th of June 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 21^st of June 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 22^nd of June 2023, and he was required to respond by the 27^th of June 2023 at 5:00pm. It was in this correspondence the applicant was notified that if no response was received, his application would be dismissed without any further notice.
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.

(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

Remy McRae commenced employment with Mingara Leisure Group on 27 June 2022 and was allegedly dismissed on 14 March 2023. On 2 April 2023, McRae made an application to the Fair Work Commission (FWC) for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. The respondent, Mingara Leisure Group, notified the FWC that the correct legal business name should have been Mingara Recreation Club Ltd. McRae was required to respond to correspondence in relation to this discrepancy by 21 June 2023, and again by 27 June 2023. McRae did not respond to either correspondence, and his application was subsequently dismissed.

The central issue for the FWC was whether to dismiss McRae’s application for want of prosecution under section 587 of the Act. Section 587(1) of the Act provides that the FWC may dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Additionally, section 587(2) states that the FWC must not dismiss an application under section 365 or 773 on the grounds that it is frivolous or vexatious or has no reasonable prospects of success. Finally, section 587(3) of the Act allows the FWC to dismiss an application either on its own initiative or on application. The Vice President considered that the FWC had the jurisdiction to dismiss the application under section 587(3)(a) of the Act.

The Vice President concluded that McRae had failed to respond to the FWC’s correspondence, and therefore, his application was dismissed for want of prosecution under section 587(3)(a) of the Act. The Vice President noted that the words “without limiting when the FWC may dismiss an application” at the commencement of section 587(1) of the Act established that the FWC’s jurisdiction to dismiss an application was not limited to the circumstances set out in section 587(1)(a), (b) and (c). The Vice President also noted that McRae had not responded to the FWC’s correspondence and that his application had no reasonable prospects of success.

The Vice President dismissed the application for want of prosecution and ordered that an order to that effect be issued with the decision.

Remy McRae v Mingara Leisure Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established