Anastasis Ioannou v Victorian Trailers Pty Ltd

[2020] FWC 4611

[2020] FWC 4611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anastasis Ioannou
v
Victorian Trailers Pty Ltd
(U2019/6998)

COMMISSIONER BISSETT MELBOURNE, 31 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 25 March 2019 Mr Anastasis Ioannou (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 (FW Act). The Applicant was employed by Victorian Trailers Pty Ltd (Respondent). The Applicant stated his employment came to an end on 12 March 2019.

[2] The matter was listed for Conference/Hearing on 23 to 25 September 2019. On 29 August 2019 the Respondent’s representative advised the Commission that there were interim intervention orders in place between the Applicant and the Respondent contact persons. On 2 September 2019 correspondence was sent to the parties cancelling the listed Conference/Hearing and seeking an update from the parties as to the status of the matter by 16 September 2019. At the request of the Respondent representative on the same day, this deadline was later extended to 20 September 2019.

[3] On 18 September 2019 the Respondent representative advised the Commission that the intervention orders had been finalised. On 20 September 2019 the Applicant advised the Commission by telephone that he would like his application to proceed to Conference/Hearing. On 23 September 2019 the Commission advised the parties by email that the matter would be considered by a member of the Commission, seeking copies of the final intervention orders from the parties. These were provided by the Respondent representative on this day. Unless extended or varied, the orders are to expire on 17 September 2020.

[4] On 24 September 2019 letter correspondence was sent to the parties advising that the matter had been stayed.

[5] On 7 August 2020 the parties were contacted by email seeking an update to the status of the application and any orders in place which may limit the capacity of the Commission to deal with the application. Responses were sought by 4.00pm on 13 August 2020.

[6] There was no response from the Applicant. On 13 August 2020 the Respondent’s representative requested that the application be dismissed pursuant to sections 587(1)(c) and 587(3)(a) of the FW Act.

[7] On 17 August 2020 the Commission contacted the Applicant by email. The email advised that before considering the request by the Respondent, the Applicant was directed to provide an update as to the status of the matter by 4.00pm on 19 August 2020. The email further advised that a failure by the Applicant to respond would result in the Commission seeking submissions as to why the application should not be dismissed.

[8] No response was received from the Applicant. On 24 August 2020 the Commission sent further correspondence to the Applicant by email directing him to file with the Commission and serve on the Respondent submissions as to why his application should not be dismissed, by 4.00pm on 28 August 2020. The correspondence advised that if no response was received, his application would likely be dismissed.

[9] 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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[10] The Applicant has had several opportunities to respond to the Commission’s requests for an update to the status of his application but has not done so.

[11] For the reasons given above, I am therefore persuaded that I should exercise my power under s.587(1)(c) of the FW Act to dismiss the application on the basis that it has no reasonable prospects of success. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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