Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2022] FWC 501 of Commissioner Matheson Sydney on 7 March 2022 in matter number U2021/8813 - appeal dismissed.

[1] On 27 March 2022, Zack Bentley-Gates (the Appellant) lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision[1] of Commissioner Matheson issued on 7 March 2022.

[2] On 7 April 2022, the Appellant was directed to file and serve an outline of submissions addressing the requirement for permission to appeal only in the Commission by 21 April 2022. The Appellant did not file these submissions.

[3] On 11 April 2022, the Appellant called the Commission requesting a call back in regard to the appeal book. On the same day, the Commission returned the Appellant's call and answered his questions. The Appellant advised the Commission that he would file an appeal book. However, no appeal book has been filed.

[4] On 28 April 2022, the Vice President's chambers sent correspondence to the Appellant advising that his submissions are due to be filed and if they were not filed as soon as practicable his appeal may be dismissed. We received no response from the Appellant.

[5] The matter was listed for hearing on 12 May 2022.

[6] To date, the Appellant has not responded to any of the Commission's correspondence.

[7] Section 587 of the Act provides:

(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

(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 on the ground that the application:

[8] The words '[w]ithout 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).

[9] In the circumstances, we have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[1] Zack Bentley-Gates v El Gringos Locos Pty Ltd [2022] FWC 501.

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