Ronald Ardler McLeod v Chella Goldwin

[2023] FWC 910

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ronald Ardler McLeod
v

Chella Goldwin

(U2023/846)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 APRIL 2023

Application for an unfair dismissal remedy.

Ronald Ardler McLeod (the applicant) was employed by Chella Goldwin (the respondent) from the 9^th of January 2012 until he was dismissed on the 12^th of January 2023.

On the 2^nd of February 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 Wreck Bay Aboriginal Community Council.
On the 27^th of March 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 3^rd of April 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 4^th of April 2023 and he was required to respond by 5:00pm the 11^th of April 2023. It was in this correspondence that the applicant was advised his application would be dismissed without any notice if no response was received.
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

Ronald Ardler McLeod filed an application for unfair dismissal against Chella Goldwin, trading as Wreck Bay Aboriginal Community Council, under Section 394 of the Fair Work Act 2009. McLeod was employed by Goldwin from January 2012 until his dismissal on January 12, 2023. McLeod lodged his application on February 2, 2023, seeking a remedy for his unfair dismissal. The Commission was required to determine if the application should be dismissed for want of prosecution, as McLeod had failed to respond to correspondence regarding a discrepancy in the respondent's legal business name.

The central legal issue before the Commission was whether McLeod's failure to respond to correspondence regarding the discrepancy in the respondent's legal business name justified dismissing his application for unfair dismissal under Section 587(3)(a) of the Act. The Commission considered whether McLeod's lack of response indicated that his application was frivolous, vexatious, or had no reasonable prospects of success, or whether the application could be dismissed for want of prosecution under Section 587(1) of the Act.

The Vice President concluded that McLeod's failure to respond to correspondence regarding the discrepancy in the respondent's legal business name justified dismissing the application for want of prosecution. The Vice President found that McLeod's lack of response indicated that his application was frivolous, vexatious, or had no reasonable prospects of success, or that the application could be dismissed for want of prosecution. The Vice President noted that McLeod had been given multiple opportunities to respond to the correspondence but had failed to do so, leading to the conclusion that the application should be dismissed.

The Vice President ordered the dismissal of McLeod's application for unfair dismissal for want of prosecution under Section 587(3)(a) of the Act. The order will be issued with this decision.

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