Ryan Duggan v BHP Group Operations Pty Ltd T/A BHP Aitken Hill (Global Leadership Centre)

[2022] FWC 352

[2022] FWC 352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ryan Duggan
v

BHP Group Operations Pty Ltd T/A BHP Aitken Hill (Global Leadership Centre)

(U2021/11706)

VICE PRESIDENT CATANZARITI SYDNEY, 18 FEBRUARY 2022

Application for an unfair dismissal remedy.

1. On 14 December 2021, Ryan Duggan (the applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in relation to his employment with P&P Warehousing and Distribution Pty Ltd (the respondent).

1. On 24 December 2021, the respondent raised jurisdictional objections to this application, including that the applicant did not complete the minimum employment period.

1. On 14 January 2022, my chambers sent correspondence to the applicant, identifying the respondent’s objection and directing him to provide a statement by 21 January 2022 in support of having completed the minimum employment period, if he believed he had.

1. On 24 January 2022, my chambers sent further correspondence to the applicant, noting he had not responded and directing him to provide a response by 27 January 2022. He was advised that in the absence of a reply, his application may be dismissed without further notice.

1. On 1 February 2022, the applicant’s representative contacted my chambers apologising for the delay in responding, advising it was still seeking instructions and requesting until 4 February 2022 to respond. I granted this request.

1. On 2 February 2022, the applicant contacted my chambers directly advising that he had already instructed his representative.

1. Despite that correspondence, neither the applicant nor his representative has submitted a substantive response to the minimum employment period jurisdictional objection, or contacted chambers again at all, since 2 February 2022.

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.

(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, ‘[w]ithout 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 ss.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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