| [2023] FWC 1660 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Zeljko Komljenovic
v
Hartiganbolt
(U2023/5595)
| VICE PRESIDENT CATANZARITI | SYDNEY, 12 JULY 2023 |
Application for an unfair dismissal remedy.
Zeljko Komljenovic (the applicant) was employed by Hartiganbolt (the respondent), and he was allegedly dismissed on the 31st of May 2023.
On the 22nd of June 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The application was lodged 1 day out of time.
On the 29th of June 2023, correspondence was sent to the applicant in relation to the matter being lodged out of time and he was required to respond by the 4th of July 2023.
On the 5th of July 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 7th of July 2023. He was advised in this correspondence that in the absence of a reply, his application may be dismissed.
The applicant has not responded to any of the correspondence that my Chambers has sent to this date.
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
<PR764056>
- AGLC
- Zeljko Komljenovic v Hartiganbolt [2023] FWC 1660
- Case
- [2023] FWC 1660
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the Commission could dismiss the application for being lodged out of time and for the lack of response to correspondence from the Commission. This involved interpreting section 587 of the Act, which outlines the circumstances under which the Commission may dismiss an application, including when it is not made in accordance with the Act, or has no reasonable prospects of success. The Court also needed to consider whether the dismissal of the application for being out of time and lack of response to correspondence was in line with the broader jurisdiction provided by section 587(3) of the Act.
In deciding to dismiss the application, Vice President Catanzariti noted that section 587(1) of the Act allows the Commission to dismiss an application without limitation to the circumstances specified, meaning the jurisdiction to dismiss an application is not confined to the specified instances. Given that the application was lodged out of time and the applicant failed to respond to multiple communications from the Commission, the Vice President determined that the application could be dismissed for want of prosecution under section 587(3)(a).
The decision was made to dismiss the application for unfair dismissal, and an order to that effect will issue with the decision.
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