Timothy Gibbens v Midland Cement Materials

[2022] FWC 1761

[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.

1. 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.

1. 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).
   
   

2. 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.
   
   

3. 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.
   
   

4. 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.
   
   

5. To date, the applicant has not responded to any of the correspondence sent by my Chambers.

1. 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.

1. 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).

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

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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