Thuthija Umedya Wijenayake Kandabadage Don v Wessel Petroleum Pty Ltd T/A BP Gin Gin

[2019] FWC 4767

[2019] FWC 4767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thuthija Umedya Wijenayake Kandabadage Don
v
Wessel Petroleum Pty Ltd T/A BP Gin Gin
(U2019/4436)

VICE PRESIDENT CATANZARITI SYDNEY, 9 JULY 2019

Application for an unfair dismissal remedy.

[1] Thuthija Umedya Wijenayake Kandabadage Don was employed by Wessel Petroleum Pty Ltd T/A BP Gin Gin (the Respondent) until he was dismissed on 27 March 2019. Mr Kandabadage Don states that he was employed by the Respondent from 23 June 2017. The Respondent states that he was employed from 3 October 2018.

[2] On 17 April 2019, Mr Kandabadage Don made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[3] On 16 May 2019, the Respondent filed an Employer’s Response (Form F3) raising a jurisdictional objection on the basis that Mr Kandabadage Don did not serve the minimum employment period.

[4] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Kandabadage Don on 25 June 2019 requiring him to provide a statement to support his claim that he had served the minimum employment period. He was asked to provide this information by no later than 2 July 2019. However, no response was received from Mr Kandabadage Don.

[5] On 3 July 2019, my chambers sent further correspondence to Mr Kandabadage Don, directing him to provide a response by 4:00 pm on 8 July 2019. He was advised that in the absence of a reply, his application may be dismissed.

[6] To date, Mr Kandabadage Don has not responded to any of the Commission’s correspondence.

[7] 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.”

[8] 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).

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

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR710150>