Aaron Gray v Ferrocut Australia Pty Ltd

[2013] FWC 2520

[2013] FWC 2520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Gray
v
Ferrocut Australia Pty Ltd
(U2012/16032)

DEPUTY PRESIDENT BARTEL ADELAIDE, 24 APRIL 2013

Termination of employment - Dismissal for want of prosecution

[1] Aaron Gray (the applicant) was dismissed from Ferrocut Australia Pty Ltd (the respondent) on 20 November 2012.

[2] The applicant failed to attend the conference before the Fair Work Conciliator and failed to comply with directions issued on 31 January 2013 to file documents. On 8 March the applicant advised that he failed to comply with the Directions because had been in Whyalla due to the death of his brother. He failed to attend a further directions conference on 20 March 2013. On that day the Fair Work Commission (the FWC) sent correspondence to the applicant requesting that he advise (i) whether he wished to proceed with his application; (ii) his reasons for non-attendance; and (iii) personal contact details (due to past difficulties making phone contact with him).

[3] The applicant responded that day advising that he failed to attend because he was preparing to return to Whyalla to attend to family issues arising from his brother’s death and that he wished to pursue his application. No contact details were provided.

[4] Consequently, a further directions conference was held on 5 April 2013. The applicant again failed to participate. Further Directions were issued on 5 April which set out the background to the matter and included the following passages:

“… on each occasion that the applicant has failed to meet his responsibilities there has been an absence of any advice that he would not attend and/or be able to comply with the directions. This has caused inconvenience to the respondent and the FWC.

Section 587 of the Fair Work Act 2009 (the Act) as it applied as at the date of the applicant’s termination relevantly provides that:

‘587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA 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) …..

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.’

The matters set out in ss.587(1)(a), (b) and (c) are not exhaustive, and the FWC retains the discretion to dismiss an application on other grounds, providing that procedural fairness is afforded to the parties and there are reasonable grounds for doing so.

The Fair Work Commission now directs that:

1. The applicant show cause as to why his application should not be dismissed for want of prosecution. The applicant is to provide a written submission to the FWC and serve a copy on the employer by close of business on Friday 19 April 2013.

2. The employer is directed to respond to any submission by the applicant by filing a written submission with the FWC and serving a copy on the applicant by close of business on Friday 3 May 2013.

Should the applicant fail to provide a submission by the due date without reasonable cause, he is on notice that his application will likely be dismissed.”

[5] No written submission or contact of any kind has been made by the applicant. I am satisfied that he has been given ample opportunity to demonstrate that he is serious about his application and that he has repeatedly failed to do so. The application for an unfair dismissal remedy is dismissed for want of prosecution. An order to this effect is issued with this decision.

DEPUTY PRESIDENT

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