Vaipaepae Seumanutafa v Cleanplus Chemical Summary

[2022] FWC 3318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Vaipaepae Seumanutafa
v

Cleanplus Chemical

(U2022/10052)

VICE PRESIDENT CATANZARITI

SYDNEY, 16 DECEMBER 2022

Application for an unfair dismissal remedy.

Vaipaepae Seumanutafa (the applicant) was employed by Cleanplus Chemical (the respondent) from the 19^th of February 2016 through to the 5^th 2022.

On the 14^th of October 2022, 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 Clean Plus Chemicals Pty Ltd.
On the 29^th of November 2022, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 6^th of December 2022. No response was received at this time.
Further correspondence was sent to the applicant on the 7^th of December 2022 and he was required to respond by the 5:00pm 9^th of December 2022. 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.

(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.

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

Vaipaepae Seumanutafa brought a claim against Cleanplus Chemical for unfair dismissal under section 394 of the Fair Work Act 2009. The applicant had been employed by the respondent from February 2016 until October 2022. The dispute arose following the applicant’s dismissal on October 14, 2022, and his subsequent application to the Fair Work Commission for a remedy. The Commission was required to consider whether the application could be dismissed for want of prosecution under section 587 of the Act.

The Commission considered whether the application could be dismissed without further notice to the applicant due to his failure to respond to correspondence regarding a discrepancy in the respondent’s legal business name and a subsequent warning that his application would be dismissed if he did not respond. The Commission noted that section 587(1) of the Act grants the Commission broad discretion to dismiss an application, including on its own initiative, and that this jurisdiction is not limited to the specific circumstances outlined in the subsection. The Commission concluded that the application had been effectively abandoned due to the applicant’s failure to respond to multiple communications, and therefore the application would be dismissed for want of prosecution.

The Vice President decided to dismiss the application for want of prosecution under section 587(3)(a) of the Act. An order to that effect will issue with this decision.

Vaipaepae Seumanutafa v Cleanplus Chemical

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established