Scott Dewar v Kalbarri Motor Hotel

[2023] FWC 3022

[2023] FWC 3022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Scott Dewar
v

Kalbarri Motor Hotel

(U2023/8662)

VICE PRESIDENT CATANZARITI SYDNEY, 21 NOVEMBER 2023

Application for an unfair dismissal remedy

1. Scott Dewar (the Applicant) was employed by Kalbarri Motor Hotel (the Respondent) from the 4 January 2022 until he was dismissed on the 30 August 2023.

1. On the 11 September 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 legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was The Trustee for the Starling Family Trust.
   
   

2. On 6 November 2023, correspondence was sent to the Applicant in relation to the legal business name discrepancy and he was required to respond by 13 November 2023.  No response was received at this time.

1. Further correspondence was sent to the Applicant on the 14 November 2023 and he was required to respond by 5:00 pm on 17 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.

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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