Steven Osborn v Eugene Lambert Tint a Car Bunbury Summary

[2023] FWC 2511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Steven Osborn
v

Eugene Lambert Tint A Car Bunbury

(U2023/6323)

VICE PRESIDENT CATANZARITI

SYDNEY, 29 SEPTEMBER 2023

Application for an unfair dismissal remedy.

Steven Osborn (the applicant) began employment with Eugene Lambert Tint A Car Bunbury (the respondent) on the 9^th of November 2020 and was allegedly dismissed on the 3^rd of July 2023.
On the 12^th of July 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was 225 Ltd Pty.
On the 8^th of September 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 15^th of September 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 18^th of September 2023. He was required to respond to this correspondence by 5:00pm the 21^st of September 2023. It was in this correspondence that the applicant was advised his matter would be dismissed without further notice, should my chambers not receive a response.
To date, the applicant has not responded to any of 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.

(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

In the matter of Steven Osborn v Eugene Lambert Tint a Car Bunbury, the applicant, Steven Osborn, sought a remedy for unfair dismissal under the Fair Work Act 2009. Osborn alleged that he was dismissed from his employment with the respondent, Eugene Lambert Tint a Car Bunbury, on July 3, 2023. The application for an unfair dismissal remedy was lodged on July 12, 2023. The respondent initially identified itself as 225 Ltd Pty, but this discrepancy was addressed in correspondence sent to Osborn on September 8, 2023. Despite further correspondence on September 18, 2023, which required a response by 5:00pm on September 21, 2023, Osborn did not respond to any correspondence from the Commission.

The court was required to decide whether the application could be dismissed under section 587 of the Act, which allows the Fair Work 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. Section 587(3) further provides that the Commission may dismiss an application either on its own initiative or on application. In this instance, the court considered the applicant's failure to respond to multiple communications regarding a legal business name discrepancy and his failure to comply with deadlines set by the Commission.

The court found that the application could be dismissed for want of prosecution, pursuant to section 587(3)(a) of the Act. The court noted that the jurisdiction to dismiss an application was not limited to the specific circumstances listed in section 587(1), and decided to dismiss the application on its own initiative. The court found that the applicant's failure to respond to correspondence and comply with deadlines indicated a lack of prosecution of the application. Consequently, the court dismissed the application for want of prosecution.

An order will issue with this decision, dismissing the application for unfair dismissal remedy.

Steven Osborn v Eugene Lambert Tint a Car Bunbury

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established