Adam Carrig v Woolworths Ltd

[2014] FWC 5817

[2014] FWC 5817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Adam Carrig
v
Woolworths Ltd
(C2014/1265)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 22 AUGUST 2014

Application to deal with general protections dispute - dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] On 17 July 2014 Mr Adam Carrig (the Applicant) lodged an application alleging a breach of the General Protections sections of the Fair Work Act 2009 (the Act) by Woolworths Limited (the Respondent).

[2] The F8 form submitted by the Applicant stated that he had not been dismissed but also claimed that there had been a constructive dismissal.

[3] Whether the Applicant would have wished to proceed under s.365 or s.372 of the Act remains unclear. In any event, he alleged that the Respondent had breached s.340.

[4] The Respondent submitted that the Applicant resigned from his employment on 27 June 2014, with effect from 25 July 2014, of his own volition.

[5] The Applicant’s position was “Quality Specialist Hardgoods” with a total fixed remuneration of $98,100 per annum. He sought compensation for loss of earnings of $10,000.

[6] The matter was listed for conference in Sydney on 18 August 2014. The Applicant did not appear.

[7] Mr Bennett, on behalf of the Respondent advised the Commission that he had information that the Applicant had moved overseas.

[8] My Associate rang the Applicant on his mobile phone but was greeted with a message that the phone had been disconnected.

[9] Mr Bennett made application pursuant to s.587 of the Act that the application be dismissed. He has lodged a further written submission to that effect on 20 August.

[10] On 18 August, immediately after the scheduled conference, I sent the Applicant, by email, an advice requiring him to show cause why the application should not be dismissed by Close of Business Wednesday 20 August. No response has been received.

Relevant Legislative Provision

[11] s.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), the 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application”

[12] In McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, Vice President Catanzariti decided that s.587 was sufficiently broad to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.

[13] He decided:

“[10] As Ms McLeod has not responded to the Commission’s repeated attempts to get in contact with her, and in light of her non-appearance at the teleconference listed for 3 February 2014, I have decided to dismiss her application. In accordance with the principle of a fair go all round to both employers and employees, I find that Ms McLeod’s non-participation in the Commission’s processes has already required the Respondent to expend resources in responding to a claim that Ms McLeod does not seem to have any intention of following through. Further, in taking into account fairness, justice, equity and good conscience I find that Ms McLeod has been given ample opportunity to make contact with the Commission, but has failed to do so.

[11] While the Respondent has not made an application seeking that Ms McLeod’s application be dismissed I have, on my own initiative pursuant to s.587(3)(a) of the Act, found that the application should be dismissed. I order accordingly.”

[14] Arguably, the reservation in s.587(2) does not apply because on the face of the application a dismissal is not alleged.

[15] In any event, I adopt the approach taken by Vice President Catanzariti and find that “fairness, justice, equity and good conscience” warrant the dismissal of the application.

ORDER

1. The application lodged by Mr Adam Carrig pursuant to s.365/s.372 of the Fair Work Act 2009 (the Act) on 17 July 2014 is dismissed pursuant to s.587 of the Act

DEPUTY PRESIDENT

Appearances:

I. Bennett with N. Ilacqua for Woolworths Limited

Hearing details:

2014

Sydney:

August 18.

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