Rex Webster v The Trustee of Inala DN Trust T/A Inala Day & Night Pharmacy

[2018] FWC 1365

[2018] FWC 1365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Rex  Webster

v

The Trustee of Inala DN Trust T/A Inala Day & Night Pharmacy

(U2017/13617)

Deputy President Dean SYDNEY, 9 MARCH 2018

Application for an unfair dismissal remedy.

1. On 20 December 2017, Mr Rex Webster made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. Mr Webster’s application states that he commenced employment with The Trustee for Inala DN Trust T/A Inala Day & Night Pharmacy (the Respondent) on 11 October 2011 and that his dismissal took effect on 29 November 2017.

1. The matter was listed for conciliation before a Fair Work Commission conciliator on 22 January 2018, however the conciliation could not take place as Mr Webster unavailable at the allotted time.

1. The matter was allocated to my chambers as there was a dispute over the date of effect of the dismissal. According to Mr Webster’s application, the dismissal took effect on 29 November 2017. The Respondent states that the dismissal took effect on 18 November 2017. As the application was made on 20 December 2017, Mr Webster contends his application was made within time. If the Respondent is correct about the date the employment relationship ended, Mr Webster’s application was made 11 days outside the 21 day period prescribed by s.394(2) of the Act.

1. Correspondence was sent to Mr Webster on 6 February 2018 asking him to confirm the date he says the dismissal took effect and to provide any evidence in support of his contention. 

1. On 20 February 2018, further correspondence was sent to Mr Webster noting that he had previously been directed to file a statement in the Commission but had not done so. Mr Webster was given until 4:00pm on 23 February 2018 to respond. Mr Webster was advised in the absence of any material being received, his application may be dismissed.

1. On 5 March 2018 a final attempt was made to contact Mr Webster by telephone. The Commission left a voicemail message requesting that he contact my chambers in relation to his application.

1. To date, Mr Webster has not provided a response to the Commission’s correspondence.

1. Section 587(1) 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.

1. 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).

1. In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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