Ricardo Mayaute v Service Stream Holding Pty Ltd

[2018] FWC 3398

[2018] FWC 3398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ricardo Mayaute

v

Service Stream Holding Pty Ltd

(U2018/3361)

Deputy President Dean SYDNEY, 15 JUNE 2018

Application for an unfair dismissal remedy.

1. On 29 March 2018, Mr Ricardo Mayaute made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

1. The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 8 May 2018. However, the conciliation could not take place as Mr Mayaute was not able to be contacted at that time.

1. The application was allocated to me as it appeared that Mr Mayaute’s application had been made outside the 21 day period prescribed by s.394(2) of the Act. Correspondence to that effect was sent to Mr Mayaute on 22 May 2018. The correspondence required him to file in the Commission a statement explaining why the time for the lodgement of his application should be extended.

1. On 4 June 2018, correspondence was sent to Mr Mayaute noting that he had previously been directed to file a statement in the Commission but had not done so. Mr Mayaute was given until 4:00pm on 8 June 2018 to respond. He was advised that in the absence of any material being received, his application may be dismissed.

1. On 12 June 2018 a final unsuccessful attempt was made to contact Mr Mayaute by telephone.

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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