Robert Clancy v Mendi Constructions Pty Ltd

[2023] FWC 3088

[2023] FWC 3088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Clancy
v

Mendi Constructions Pty Ltd

(U2023/4917)

VICE PRESIDENT CATANZARITI SYDNEY, 24 NOVEMBER 2023

Application for an unfair dismissal remedy

1. Robert Clancy (the Applicant) was employed by Mendi Constructions Pty Ltd (the Respondent) from 24 October 2022 until he was dismissed on 23 May 2023.

1. On the 4 June 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The Respondent raised an objection in the F3 – Employer’s Response Form stating that the Applicant was not an employee of the Respondent.  The Applicant was employed on an on-hire basis through WLH Professional Services Pty Ltd, a labour hire organisation.

1. On the 14 July 2023, correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and he was required to respond by 21 July 2023.

1. The Applicant provided a response advising that “No I wasn't employed by Mendi but I had worked with them for over 7 months through Western Labor Hire.”

1. My Chambers responded with information that the Applicant may wish to amend the name of the company, and may do so by filing a Form F1, or he may wish to file his claim against a different employer by discontinuing this matter and relodging against the new employer.

1. Further correspondence was sent to the Applicant on the 16 August 2023 and 13 September 2023 requesting an update. No response was received.

1. On 15 November 2023 a final notice was emailed to the Applicant and he was required to respond by 5:00pm the 21 November 2023. It was in this correspondence that the Applicant was advised his application would be dismissed without any notice if no response was received.
   
   

2. To date, the Applicant has not responded to the final notice email sent by my Chambers.

1. 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.”

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 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.

VICE PRESIDENT

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