Tai Pinkerton v Super Cheap Auto

[2023] FWC 1316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tai Pinkerton
v

Super Cheap Auto

(U2023/2729)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 JUNE 2023

Application for an unfair dismissal remedy.

Tai Pinkerton (the applicant) was employed by Super Cheap Auto (the respondent) from the 5^th of February 2023 through to the 30^th of March 2023.

On the 30^th of March 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 objected to the application on the basis that the applicant did not meet the minimum employment period required to lodge an application under section 394 of the Fair Work Act 2009.
There was also a dispute between the legal business names mentioned in the F2 – Unfair Dismissal Application and the F3 – Employer’s Response Forms.
On the 19^th of May 2023, correspondence was sent to the applicant in relation to the jurisdictional objections raised by the respondent and he was required to respond by the 26^th of May 2023. No response was received from the applicant at this time.
On the 30^th of May 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 2^nd of June 2023. He was advised that in the absence of a reply, his application may be dismissed.
To date, the applicant has not responded to the jurisdictional objections raised by the respondent, or any further correspondence sent by my Chambers in writing.

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 Tai Pinkerton v Super Cheap Auto, the applicant sought a remedy for unfair dismissal against the respondent, who had employed him from 5 February 2023 until 30 March 2023. The respondent objected to the application, asserting that the applicant did not meet the minimum employment period required under the Fair Work Act 2009 and also highlighted a discrepancy in the business names mentioned in the application and response forms. Despite being given multiple opportunities to respond to the jurisdictional objections and subsequent correspondence, the applicant failed to provide any response.

The primary legal issue before the court was whether the applicant met the jurisdictional requirements to lodge an unfair dismissal application under section 394 of the Fair Work Act 2009. Additionally, the court needed to determine if the application could proceed despite the applicant's failure to respond to jurisdictional objections and correspondence from the Commission. The court also had to consider if the application could be dismissed for want of prosecution under section 587(3)(a) of the Act.

In dismissing the application for want of prosecution, the court emphasised that the Commission's jurisdiction to dismiss an application is not limited to the specific grounds set out in section 587(1) of the Act. Given the applicant's failure to respond to the jurisdictional objections and the multiple opportunities provided to him, the court found that the application had no reasonable prospects of success and was effectively abandoned. The decision to dismiss the application was made under section 587(3)(a) of the Act, allowing the Commission to dismiss an application on its own initiative. The court issued an order dismissing the application for want of prosecution.

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