Tyran James Wayne Russell v Picton Tyres & Mechanical

[2020] FWC 1878

[2020] FWC 1878

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tyran James Wayne Russell
v
Picton Tyres & Mechanical
(U2020/597)

VICE PRESIDENT CATANZARITI SYDNEY, 8 APRIL 2020

Application for an unfair dismissal remedy.

[1] On 17 January 2020, the Fair Work Commission (the Commission) received an application from Tyran Russell for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘Picton Tyres & Mechanical’.

[2] On 8 February 2020, DK & TL Daley Pty Ltd (the respondent) filed an Employer Response to Unfair Dismissal Application (Form F3) raising a jurisdictional objection on the basis that Mr Russell’s application was lodged out of time. Mr Russell said his dismissal took effect on 20 December 2019. The respondent said it took effect on 19 December 2019.

[3] On 6 March 2020, my chambers sent Mr Russell correspondence about the extension of time issue. I directed him to provide a statement by 4:00 pm on 13 March 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 18 March 2020, my chambers sent further correspondence to Mr Russell, directing him to respond by 4:00 pm on 23 March 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Russell has not responded to any of the Commission’s correspondence.

[6] 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.”

[7] 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).

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

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

VICE PRESIDENT

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