Sam King v Fingal Bay Service Station & Tyre Service Pty Ltd

[2023] FWC 779

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sam King
v

Fingal Bay Service Station & Tyre Service Pty Ltd

(U2023/719)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 APRIL 2023

Application for an unfair dismissal remedy.

Sam King (the applicant) was employed by Fingal Bay Service Station & Tyre Service Pty Ltd (the respondent) from the 13^th of January 2022 through to the 9^th of January 2023.

On the 31^st of January 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The respondent objected to the application on the basis that the applicant did not meet the minimum employment period required to lodge an application under section 394 of the Fair Work Act 2009.
There was also a dispute between the legal business names mentioned in the F2 – Unfair Dismissal Application and the F3 – Employer’s Response Forms.
On the 3^rd of March 2023, correspondence was sent to the applicant in relation to the jurisdictional objections raised by the respondent and he was required to respond by the 10^th of March 2023. No response was received from the applicant at this time.
On the 14^th of March 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 17^th of March 2023. He was advised that in the absence of a reply, his application may be dismissed.

To date, the applicant has not responded to the jurisdictional objections raised by the respondent, or any further correspondence sent by my Chambers in writing.

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

Sam King applied for an unfair dismissal remedy against Fingal Bay Service Station & Tyre Service Pty Ltd, claiming he had been dismissed without cause. The respondent argued that Mr King had not been employed for the requisite minimum period to be eligible for such an application and also noted discrepancies in the legal business names mentioned in the application and response forms. Mr King failed to respond to correspondence from the Fair Work Commission regarding the jurisdictional objections and the need to provide a response to the issues raised. The Commission found that the application was not being pursued by Mr King and thus decided to dismiss it.

The legal issues before the Commission included whether Mr King's employment period met the minimum requirement for an unfair dismissal application and whether the discrepancies in the business names were significant enough to affect the application's validity. The Commission also considered whether Mr King's failure to respond to correspondence and objections warranted dismissal of the application under section 587 of the Fair Work Act 2009.

The Commission noted that Mr King had not responded to any correspondence regarding the objections raised by the respondent and the need to address the discrepancies in the business names. This inaction, coupled with the absence of any response to the jurisdictional objections, led to the conclusion that the application was not being pursued. The Commission found that it had the authority to dismiss the application for want of prosecution under section 587(3)(a) of the Act. The Commission decided to dismiss the application on these grounds.

The Commission issued an order dismissing the application for want of prosecution, reflecting its decision that Mr King had not adequately pursued his application and had failed to address the jurisdictional objections and discrepancies in the business names. This dismissal effectively concluded the matter, with no further action to be taken by the Commission regarding Mr King's unfair dismissal claim.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established