Troy West v Runamuk Transport

[2024] FWC 921

[2024] FWC 921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Troy West
v

Runamuk Transport

(U2024/1267)

DEPUTY PRESIDENT EASTON SYDNEY, 10 APRIL 2024

Application for an unfair dismissal remedy

1. Mr Troy West was dismissed from his employment on 1 February 2024. On 7 February 2024 Mr West filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr West appears to have been employed by Runamuk Transport Pty Ltd.

1. Runamuk raised a jurisdictional objection that Mr West did not complete the minimum employment period. Sections 382 and 383 of the Act require an Applicant to be ‘an employee who has completed a period of employment with his or her employer of at least the minimum employment period’. The minimum employment period is 6 months if the former employer does not identify as a small business. A small business is when the employer has fewer than 15 employees. In the case that an employer is a small business, the minimum employment period is 12 months.

1. A conciliation conference was scheduled on 8 March 2024 however Mr West did not attend. On 13 March 2024, Mr West contacted the Commission apologising for not being able to attend the conciliation and confirmed he wanted to proceed with his application.

1. On 14 March 2024, correspondence was sent to Mr West regarding the minimum employment period issue as well as an administrative query about the legal name of his former employer. The correspondence invited Mr West to request an amendment to his application to name a different entity as his former employer, or to provide submissions as to why the entity he nominated was the correct entity. It also asked him to confirm that he believed he had met the minimum employment period. Mr West was required to respond by 21 March 2024. Mr West did not respond to this correspondence.

1. Further correspondence was sent to Mr West on 25 March 2024, and he was required to respond by 5:00pm on 28 March 2024. Mr West was also advised that his application may be dismissed without further notice if he did not respond. Mr West did not respond to this correspondence.

1. On 2 April 2024 the Commission attempted to contact Mr West via phone and a voicemail message was left advising Mr West to respond to the correspondence as soon as possible. The voicemail also warned that if he did not contact the Commission his application would be dismissed without further notice.

1. On 3 April 2024, Runamuk contacted my Chambers seeking an update on the matter. Mr West was copied on the reply which informed Runamuk that Mr West had until 9 April 2024 to respond. The email reiterated the warning to Mr West that if he did not contact the Commission his application would be dismissed without further notice.

1. To date, Mr West has not responded to any of the Commission’s attempts to contact him.

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.

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.

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 Mr West’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR773350).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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