Surendra Chand v Department of Education

[2019] FWC 1441

[2019] FWC 1441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Surendra Chand
v
Department of Education
(U2019/376)

DEPUTY PRESIDENT DEAN SYDNEY, 20 MARCH 2019

Application for an unfair dismissal remedy.

[1] On 10 January 2019 Mr Surendra Chand made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009.

[2] Mr Chand’s application states that he commenced employment with the Department of Education on 29 January 2004 and his dismissal took effect on 11 December 2018.

[3] On 11 January 2019, the Commission wrote to Mr Chand informing him that it appeared that the Department of Education may not be a National System Employer, and that Mr Chand should seek legal advice as to the validity of his application. He was asked to contact the Commission within 14 days to advise of his intentions with respect to his application. An attempt was also made to contact Mr Chand by telephone. No response was received from Mr Chand at this time.

[4] Further correspondence was sent to Mr Chand on 22 January 2019 noting the correspondence of 11 January 2019 and again advising that it appeared the application was not validly made and suggesting Mr Chand contact the Industrial Relations Commission of New South Wales to discuss lodging an application in that jurisdiction. No response was received from Mr Chand.

[5] On 6 February 2019, correspondence was sent to Mr Chand noting his lack of response to the previous correspondence. Mr Chand was advised that unless advice was received that he wanted to proceed with his application within seven days of the date of the letter, his application would be dismissed.

[6] Mr Chand contacted the Commission by telephone on 6 February 2019 to advise that he did wish to proceed with his application.

[7] Further correspondence was sent to Mr Chand on 11 February 2019 again indicating that it appeared he was not a National System Employee. The correspondence required Mr Chand to provide a response within seven days as to why he considered there was jurisdiction for the Commission to deal with his application. No response was received.
[8] On 20 February 2019, correspondence was sent to Mr Chand noting that he had previously been directed to provide a submission to the Commission but he had not done so. He was given until 4:00 pm on Friday, 22 February 2019 to respond, and was advised that in the absence of a reply his application may be dismissed.

[9] During a telephone conversation with my associate on 26 February 2019, Mr Chand advised that he would respond to the correspondence “when I have time”.

[10] Mr Chand has not responded to any of the correspondence sent to him since 6 February 2019.

[11] Section 587(1) 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.

[12] 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).

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

DEPUTY PRESIDENT

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