Andrew Flaye v Mineco Pty Ltd [2024] FWC 120

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Flaye v Mineco Pty Ltd (U2023/12833) VICE PRESIDENT CATANZARITI SYDNEY, 16 JANUARY 2024 Application for an unfair dismissal remedy [1] Andrew Flaye (the Applicant) was employed by Mineco Pty Ltd (the Respondent) from 21 November 2022 until they were dismissed on 22 November 2023. [2] On 20 December 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). [3] The Applicant’s application appeared to have been filed outside of the 21 day statutory timeframe by 7 days. [4] On 21 December 2023, correspondence was sent to the Applicant in relation to the jurisdictional issues mentioned above and they were required to respond by 2 January 2024. [5] The Applicant responded by phone, leaving a voicemail in Chambers on 31 December 2023. The call was returned on 4 January 2024 and a voicemail left. No response was received after that call. [6] Further correspondence was sent to the Applicant on 9 January 2024 and they were required to respond by 5:00pm on 12 January 2024. It was in this correspondence that the Applicant was advised the application would be dismissed without any notice if no response was received. [7] To date, the Applicant has not responded to any of the correspondence sent by my Chambers. [8] 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: [2024] FWC 120 DECISION -- 1 of 2 -- [2024] FWC 120 2 (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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.” [9] 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). [10] In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. [11] An order to that effect will issue with this decision. VICE PRESIDENT Printed by authority of the Commonwealth Government Printer <PR770266> -- 2 of 2 --