Zachary William Buckman v Access Canberra

[2022] FWC 1069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Zachary William Buckman
v

Access Canberra

(U2022/3210)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 MAY 2022

Application for an unfair dismissal remedy.

Zachary William Buckman was employed by Access Canberra from the 3^rd of April 2018 through to the 11^th of January 2022.

On the 16^th of March 2022, Zachary William Buckman made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged 43 days out of time.
On the 12^th of April 2022, correspondence was sent to Zachary William Buckman addressing the issue that his application was lodged outside of the 21 day timeframe. Zachary William Buckman was given until 5:00pm on Tuesday the 19^th of April to respond to this correspondence. No response was ever received by my chambers.
On the 20^th of April 2022, further correspondence was sent to Zachary William Buckman directing him to provide a response by 5:00pm on Thursday the 21^st of April 2022. He was advised that in the absence of a reply, their application may be dismissed.

To date, Zachary William Buckman has not responded to any of the Commission’s correspondence.

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

In the Fair Work Commission, Zachary William Buckman applied for a remedy for unfair dismissal against his former employer, Access Canberra. The application was lodged 43 days outside the 21-day statutory timeframe. Despite being given multiple opportunities to respond to correspondence from the Commission highlighting the late lodgement, Zachary William Buckman failed to respond. The Vice President was required to consider whether the application should be dismissed for want of prosecution, and whether there were other grounds on which the application might be dismissed.

The Vice President considered the provisions of s.587 of the Fair Work Act 2009, which set out the circumstances in which the Commission may dismiss an application. The Vice President noted that the dismissal of an application for want of prosecution is within the broad jurisdiction of the Commission under s.587(3)(a), and is not limited to the circumstances set out in s.587(1)(a), (b) and (c). The Vice President determined that in the circumstances, it was appropriate to dismiss the application for want of prosecution.

The Vice President dismissed the application for unfair dismissal for want of prosecution. An order to that effect will issue with this decision.

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