Benjamin Northwood v Lorne World (Vic) Pty Ltd

[2023] FWC 2838

[2023] FWC 2838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Benjamin Northwood
v

Lorne World (Vic) Pty Ltd

(U2023/4479)

COMMISSIONER BISSETT MELBOURNE, 30 OCTOBER 2023

Application for an unfair dismissal remedy

1. On 22 May 2023 Mr Benjamin Northwood (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant alleged that he was unfairly dismissed from his employment with Lorne World (Vic) Pty Ltd (the Respondent).

1. On 8 June 2023 the Respondent filed a response to the application and advised that the Respondent contact person had an interim intervention order in relation to the Applicant. A copy of the Interim Family Violence Intervention Order (FVIO) was attached.

1. On 22 June 2023 the Respondent contact person wrote to the Commission and advised that the interim order is now final and is in place for a period of 12 months.

1. On 27 June 2023 the Commission wrote to the parties and advised that:

·     The FVIO prohibits (amongst other restrictions) the Applicant from having contact with the Respondent contact person except through a lawyer or mediator

·     The Applicant’s representative did not appear to be a lawyer or mediator; and

·     It did not appear that a hearing could proceed in the circumstances without breaching the FVIO

1. In that email I sought advice from the Applicant’s representative (or the Applicant) as to how the matter might proceed in these circumstances and required that a response be provided by no later than 30 June 2023.

1. No satisfactory reply was received from the Applicant or his representative.

1. On 4 July 2023 my chambers wrote to the Applicant’s representative and again sought advice as to how proceedings might occur in light of the FVIO. The Applicant’s representative was required to reply by no later than 7 July 2023.

1. On 13 July 2023 my chambers wrote to the parties and advised that I proposed to adjourn proceedings for a period of three months. I sought advice from the parties as to whether they objected to this course of action and noted that the Applicant had not provided any advice as to what steps he intended to take to enable the application to proceed.

1. As neither party advised of any objection, on 18 July 2023 my chambers wrote to the parties and confirmed that the matter was adjourned for three months and that the Commission would contact the parties at that time.

1. On 18 October 2023 my chambers wrote to the parties and advised (in part) that: 

The Commissioner is concerned that the Applicant has taken no steps to (or at least has not advised the Commission that he has taken any steps) to enable his application for unfair dismissal to proceed.

In these circumstances (it being now 5 months since the application was made and potentially 7 months since the dismissal) Commissioner Bissett is not convinced the Applicant intends to take any action to ensure his application can proceed. Commissioner Bissett is therefore considering dismissing the application on her initiative in accordance with s.587 of the Fair Work Act 2009 as it is her preliminary view the Applicant does not intend to pursue the application.

The Applicant is directed to provide any submissions as to why the Commissioner should not dismiss his application by no later than 4.00pm Tuesday 24 October 2023.

The Respondent is not required to provide any correspondence to the Commission at this stage.

1. Section 587 of the FW Act sets out when the Commission may dismiss an application. It 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.

…

1. Section 587 does not limit the circumstances where the Commission can consider dismissing an application. In this matter I consider it appropriate to exercise my discretion to dismiss the application of Mr Northwood in accordance with s.587(1) of the FW Act. I do so as Mr Northwood has failed to engage with the Commission and has not demonstrated that he has taken any steps to prosecute his unfair dismissal application.

1. The application is therefore dismissed.

COMMISSIONER

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