Sam Kirkwood v Acrow Formwork and Scaffolding Pty Ltd

[2023] FWC 3272

[2023] FWC 3272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sam Kirkwood
v

Acrow Formwork and Scaffolding Pty Ltd

(U2023/8850)

VICE PRESIDENT CATANZARITI SYDNEY, 7 DECEMBER 2023

Application for an unfair dismissal remedy

1. On 15 September 2023, Sam Kirkwood (the Applicant) made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in relation to his former employment with Acrow Formwork and Scaffolding Pty Ltd

1. A conciliation before a Fair Work Commission conciliator was listed to take place on 9 November 2023.  The Applicant did not attend the conciliation.

1. On 21 November 2023, correspondence was sent to the Applicant in relation to the jurisdictional issues mentioned above and he was required to respond by 28 November 2023. No response was received at this time.

1. Further correspondence was sent to the Applicant on 30 November 2023 and he was required to respond by 5:00pm on 5 December 2023. It was in this correspondence that the Applicant was advised his application would be dismissed without any notice if no response was received.

1. To date, the Applicant has not responded to any of the correspondence 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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