Tyson Thew v Game Automotive Pty Ltd

[2022] FWC 1106

[2022] FWC 1106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Tyson Thew
v

Game Automotive Pty Ltd

(U2022/2937)

VICE PRESIDENT CATANZARITI SYDNEY, 10 MAY 2022

Application for an unfair dismissal remedy.

1. Tyson Thew was employed by Game Automotive Pty Ltd from the 5^th of October 2020 until they were dismissed on the 23^rd of November 2021.

1. On the 9^th of March 2022, Tyson Thew made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged 85 days outside the 21 day period prescribed by s.394(2) of the Act.

1. This matter did not reach the conciliation stage and as such, was never allocated past my chambers.
   
   

2. On the 16^th of March 2022, correspondence was sent to Tyson Thew addressing the Out of Time jurisdictional issue and he was given until Monday the 21^st of March 2022 to respond to this correspondence. No response was ever received.
   
   

3. On the 24^th of March 2022, further correspondence was sent to Tyson Thew directing them to provide a response by 5:00pm on the 28^th of March 2022. They were advised that in the absence of a reply their application may be dismissed.

1. To date, Tyson Thew has not responded to any of the Commission’s correspondence.

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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