Shane Castle v Tailored Workforce

[2020] FWC 1552

[2020] FWC 1552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Castle
v
Tailored Workforce
(U2019/14717)

VICE PRESIDENT CATANZARITI SYDNEY, 8 APRIL 2020

Application for an unfair dismissal remedy.

[1] Shane Castle states he was employed by ‘Tailored Workforce’ from 3 May 2019 until his dismissal took effect on 18 December 2019. On 24 December 2019, he applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 10 February 2020, The Tailored Workforce Unit Trust T/A Tailored Workforce Pty Ltd filed an Employer’s Response (Form F3), objecting to Mr Castle’s application on the basis that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The Respondent said that Mr Castle was not employed between 28 August 2019 and 1 October 2019, and so that time should not count towards the minimum employment period.

[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Castle on 2 March 2020, requiring him to provide a statement to support his claim that he had completed the minimum employment period. He was asked to provide this information by 4:00 pm on 9 March 2020. However, we received no response from Mr Castle by that time.

[4] On 10 March 2020, my chambers sent further correspondence to Mr Castle, directing him to provide a response by 4:00 pm on 13 March 2020. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, Mr Castle has not responded to any of the Commission’s correspondence.

[6] 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.”

[7] 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 s.587(1)(a), (b) and (c).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

VICE PRESIDENT

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