Benjamin McDonald v Heavy Duty Plumbing

[2017] FWC 4279

[2017] FWC 4279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin McDonald
v
Heavy Duty Plumbing
(U2017/5845)

COMMISSIONER RIORDAN SYDNEY, 28 AUGUST 2017

Application for an unfair dismissal remedy.

[1] Mr Benjamin McDonald was employed by Heavy Duty Plumbing Pty Ltd, between April 2016 and May 2017.

[2] A Conciliation/Directions Conference was convened on 10 July 2017. Neither Mr McDonald or Heavy Duty Plumbing attended the Conference. In attempting to contact Mr McDonald, my Associate was advised by Mr McDonald’s partner that Mr McDonald wished to withdraw his application and a Notice of Discontinuance would be filed in due course.

[3] My Associate sent Mr McDonald an email on 10 July 2017 advising him that a Notice of Discontinuance was to be filed within 7 days of the email being sent. Mr McDonald did not respond to this email.

[4] My Associate followed up Mr McDonald regarding the Notice of Discontinuance with a phone call on 19 July 2017. He advised that he was unable to discuss the matter at the time and requested another phone call the following day.

[5] My Associate rang Mr McDonald again on 20 July 2017 and advised him of the information that was provided to the Commission by his partner. Mr McDonald was advised that a Notice of Discontinuance would need to be filed if he decided not to proceed with his application or an email should be sent to the Commission advising that he would like to proceed with his application. No correspondence has been received from Mr McDonald.

Relevant Legislation

[6] Section 399A of the Fair Work Act 2009 (Cth)(the Act) states:-

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[7] Section 587 of the 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

[8] Mr McDonald failed to attend the Conference on 10 July 2017. The Commission has received no advice from Mr McDonald as to how he would like to proceed with his application despite an email and telephone discussion with my Associate.

[9] After considering all of the circumstances in this matter, I have decided to dismiss Mr McDonald’s unfair dismissal application in accordance with section 587(3)(a) of the Act.

COMMISSIONER

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