Timothy Gibbens v Midland Cement Materials

[2022] FWC 1761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Timothy Gibbens
v

Midland Cement Materials

(U2022/3774)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 JULY 2022

Application for an unfair dismissal remedy.

Timothy Gibbens (the applicant) was employed by Midland Cement Materials (the respondent) from the 3^rd of August 2015 until he was dismissed on the 15^th of March 2022.

On the 30^th of March 2022, 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 Kelmist Nominees Pty Ltd as trustee for Monte Verde Trust.
On the 22^nd of June 2022, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 29^th of June 2022. No response was received at this time.
On the 30^th of June 2022, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 4^th of July 2022. He was advised that in the absence of a reply, his application may be dismissed.
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 Timothy Gibbens v Midland Cement Materials, the applicant, Timothy Gibbens, applied for a remedy for unfair dismissal against his former employer, Midland Cement Materials. The application was made under section 394 of the Fair Work Act 2009, after Mr Gibbens was dismissed from his employment on 15 March 2022. The respondent, Midland Cement Materials, identified itself through its legal business name as Kelmist Nominees Pty Ltd as trustee for Monte Verde Trust. The proceedings before the Fair Work Commission involved a series of correspondence exchanges between the Commission and the applicant, primarily regarding a discrepancy in the legal business name. Despite multiple reminders and deadlines, the applicant failed to address the discrepancy or respond to the correspondence.

The central legal issues for the Commission to decide were whether the applicant's failure to respond to the Commission's correspondence about the legal business name discrepancy constituted grounds for dismissal of the application, and if so, whether the application could be dismissed pursuant to section 587 of the Fair Work Act 2009. The Commission considered whether the application was not made in accordance with the Act, whether it was frivolous or vexatious, or whether it had no reasonable prospects of success. The Commission also examined the broader jurisdictional powers under section 587(3)(a) to dismiss an application on its own initiative.

The Commission found that the applicant's failure to address the legal business name discrepancy and respond to multiple correspondences indicated that the application lacked proper prosecution. The Commission determined that the applicant's conduct demonstrated a lack of engagement with the proceedings and, therefore, the application could be dismissed for want of prosecution. The decision to dismiss the application was made in accordance with section 587(3)(a) of the Act, as the Commission found the application to be without merit due to the applicant's failure to comply with procedural requirements and engage in the proceedings. Consequently, the Commission decided to dismiss the application and an order to that 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