Tristan Owen v Lucas Total Contract Solutions Pty Ltd

[2024] FWC 86

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tristan Owen
v

Lucas Total Contract Solutions Pty Ltd

(U2023/11360)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 JANUARY 2024

Application for an unfair dismissal remedy

Tristan Owen (the Applicant) was employed by Lucas Total Contract Solutions Pty Ltd (the Respondent) from 10 November 2022 until he was dismissed on 2 November 203.

On 16 November 2023, 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 Lucas Total Contract Solutions (Services) Pty Ltd.

On 15 December 2023, correspondence was sent to the Applicant in relation to the legal name discrepancy and the Applicant was required to respond by 22 December 2023. No response was received at this time.

Further correspondence was sent to the Applicant on 2 January 2024 and the Applicant was required to respond by 5:00pm on 5 January 2023. It was in this correspondence that the Applicant was advised his application would be dismissed without any notice if no response was received.

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.

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.”

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

The case of Tristan Owen v Lucas Total Contract Solutions Pty Ltd involved a dismissal application by Tristan Owen against Lucas Total Contract Solutions Pty Ltd. Owen was employed by the respondent from 10 November 2022 until his dismissal on 2 November 2023. He filed an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 on 16 November 2023. The respondent indicated that its legal business name was Lucas Total Contract Solutions (Services) Pty Ltd, which led to correspondence with Owen regarding the discrepancy in the name. Despite multiple reminders, Owen did not respond to the correspondence, leading to the respondent's application for dismissal of Owen's case.

The legal issues in this case centred around the provisions of section 587 of the Fair Work Act 2009, which outlines the circumstances under which the Fair Work Commission (FWC) may dismiss an application. The specific focus was on whether the FWC could dismiss Owen's application for want of prosecution, considering his failure to respond to correspondence from the Commission. The court needed to determine if the FWC's jurisdiction to dismiss an application was limited to the specific grounds mentioned in section 587(1) of the Act or if it could dismiss an application on other grounds, such as non-prosecution.

In its decision, the FWC determined that Owen's application could be dismissed for want of prosecution pursuant to section 587(3)(a) of the Act. The court held that the words "Without limiting when the FWC may dismiss an application" in section 587(1) of the Act meant that the Commission's jurisdiction to dismiss an application was not confined to the specific circumstances listed in section 587(1)(a), (b), and (c). Given Owen's failure to respond to the correspondence, the court concluded that the application should be dismissed. Consequently, an order dismissing the application was issued.

This decision highlights the importance of responding to correspondence from the FWC in a timely manner. Failure to do so can result in the dismissal of an application, regardless of the merits of the case. It also underscores the broad discretion of the FWC in managing its caseload and ensuring that applications are prosecuted diligently.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established