Shane Christie v 365 Construction Services Pty Ltd

[2023] FWC 3195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shane Christie
v

365 Construction Services Pty Ltd

(U2023/9079)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 DECEMBER 2023

Application for an unfair dismissal remedy

Shane Christie (the Applicant) was employed by 365 Construction Services Pty Ltd (the Respondent) from 22 March 2022 until he was dismissed on 3 September 2023.

On 20 September 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 had told the Applicant that the company had gone into administration insolvency. The Respondent has not provided a F3 employer response and has not responded to any correspondence sent by my Chambers.

On 10 November 2023, correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and he was required to provide a response. No response was received.

Further correspondence was sent to the Applicant on 23 November 2023 and he was required to respond by 5:00pm on 29 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.

To date, the Applicant has not responded to the correspondence sent by my Chambers.

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.”

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

The Fair Work Commission dealt with an application by Shane Christie against 365 Construction Services Pty Ltd, where Christie sought a remedy for unfair dismissal. Christie was employed by the Respondent until his dismissal on 3 September 2023, after which he lodged an application under section 394 of the Fair Work Act 2009 on 20 September 2023. The Respondent had informed Christie of the company’s administration and insolvency, and did not provide a response to the application or any correspondence from the Commission. The Commission attempted to communicate with Christie regarding jurisdictional issues and the potential dismissal of his application due to lack of response, but no reply was received from Christie. The Commission exercised its discretion to dismiss the application without further notice as per section 587(3)(a) of the Fair Work Act.

The primary legal issue before the Commission was whether the application could be dismissed for want of prosecution under section 587 of the Fair Work Act. The Act allows the Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The Commission also noted that its power to dismiss an application is not limited to the circumstances outlined in section 587(1) of the Act. The Respondent’s lack of response and Christie’s failure to address the Commission’s correspondence regarding jurisdictional concerns and the potential dismissal of his application, led to the conclusion that the application lacked reasonable prospects of success and was not being pursued by Christie. The Commission found that dismissing the application was warranted under section 587(3)(a) of the Act.

In dismissing the application, the Vice President considered the statutory provisions and the procedural history of the case. The Respondent’s insolvency and lack of response, coupled with Christie’s failure to respond to multiple communications from the Commission, led to the conclusion that the application was not being prosecuted. The Commission found that dismissing the application was appropriate given the circumstances and the statutory authority to do so. Consequently, the application was dismissed for want of prosecution. An order to this effect was issued with the decision.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established