Albert Mandengue v Yarraville Business Pty Ltd T/A Cash Converters Yarraville

[2019] FWC 3291

[2019] FWC 3291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Albert Mandengue
v
Yarraville Business Pty Ltd T/A Cash Converters Yarraville
(U2019/1927)

COMMISSIONER BISSETT MELBOURNE, 15 MAY 2019

Application for an unfair dismissal remedy – application dismissed under s.587 at the Commissioner’s initiative.

[1] On 22 February 2019 Mr Albert Mandengue (Applicant) made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant was employed by Yarraville Business Pty Ltd T/A Cash Converters Yarraville. His employment was terminated on 13 February 2019.

[2] The matter was subject to a conciliation conference on 22 March 2019 where it did not settle. Immediately following the conciliation the Applicant was sent a letter which advised him that he would shortly receive a notice advising him of the date of hearing and the Directions and that if he did not receive this correspondence within four weeks he should contact the Commission.

[3] On 1 April 2019 Directions were issued by the Commission which required the Applicant to file and serve his submissions, witness evidence and any relevant documents with respect to his application by no later than noon, Monday, 15 April 2019. On 10 April 2019 the Commission issued Amended Directions requiring the Applicant to file and serve his material by noon, Monday 22 April 2019.

[4] Following receipt of the Directions the Applicant wrote to the Commission on 1 April 2019 and advised that he wished to have the hearing of his application scheduled for 3 June 2019 adjourned as he would be overseas from 9 April 2019 until 11 July 2019. On 9 April 2019 the Applicant advised the Commission by telephone that he will keep an eye on his emails while he is away. The Applicant provided a copy of his itinerary and, on request from the Commission, further information which indicated that he had made his booking for his overseas travel on 26 March 2019.

[5] On 24 April 2019 the Commission wrote to the Applicant regarding his failure to file submissions by the required date. The Applicant was advised that his material had been due on 22 April 2019 and was requested to contact the Commission with advice as to when he intended to file his submissions. The Applicant was further advised that if he did not contact the Commission, his unfair dismissal application would be listed for a Non-compliance Hearing on Tuesday 2 May 2019. The Applicant did not respond.

[6] The matter was subsequently listed for Non-compliance hearing before me on 30 April 2019. Despite attempts to contact the Applicant, the Applicant did not attend.

[7] The Commission again wrote to the Applicant on 1 May 2019 regarding his failure to comply with Directions and his non-attendance at the Non-compliance Hearing on 30 April 2019. The Applicant was advised that the Commission was considering dismissing his application under s.587 of the FW Act for failure to comply with the Directions issued and his failure to participate in the Non-compliance hearing. The correspondence directed the Applicant to provide submissions with reasons as to why the Commission should not dismiss his application by noon on Monday 13 May 2019.

[8] The Applicant has failed to respond to all attempts made by the Commission to contact him since 1 April 2019. In light of the Applicant’s failure to respond, I am satisfied that he does not intend to pursue his s.394 application.

[9] Under s.587 of the FW Act the Commission may dismiss an application where there are grounds to do so.

[10] Section 587 of the FW Act states:

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.

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:

(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.

Consideration

[11] Section 587(3) of the FW Act allows the Commission to dismiss an application on the Commission’s own initiative.

[12] Section 587(1) of the FW Act does not operate to limit the grounds on which the Commission may dismiss a matter.

[13] The Applicant has been provided with opportunities to respond to directions of the Commission. He has failed to do so on each of these occasions. Attempts to contact the Applicant via email have been unsuccessful.

[14] After considering all of the circumstances I have decided that the application should be dismissed pursuant to s.587 of the FW Act because of a failure of the Applicant to comply with the directions of the Commission.

[15] The application for unfair dismissal remedy is therefore dismissed. An order 1 to this effect will be issued with this decision

COMMISSIONER

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