Blake Hayward v Sprayworx Pty Ltd

[2017] FWC 3230

[2017] FWC 3230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Blake Hayward
v
Sprayworx Pty Ltd
(U2017/1978)

COMMISSIONER BISSETT MELBOURNE, 16 JUNE 2017

Application for relief from unfair dismissal- dismissal under s.587 at the Commission’s initiative.

[1] On 23 February 2017 an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) for remedy from unfair dismissal was lodged by Mr Blake Hayward (the Applicant). The Applicant was dismissed from his employment with Sprayworx Pty Ltd (the Respondent) on 13 February 2017. The Respondent says that the Applicant has not served the minimum employment period of 12 months and as such is not eligible to make a s.394 application.

[2] A conciliation conference before a Fair Work Commission (Commission) conciliator was listed for 26 April 2017. The conciliation did not proceed as the Applicant was not able to be contacted at the listed time. The Applicant did not respond to the correspondence sent by the conciliator to him on 10 May 2017 following his failure to attend. As such the matter was referred for arbitration.

[3] On 15 May 2017 directions were issued by the Commission for the filing of submissions. No submissions have been received from either party although the Respondent subsequently advised it relied on the Form F3. A text message was sent to the Applicant on 2 June 2017 reminding him that his submissions were required by 5 June 2017. A follow up email was also sent to the Applicant on 6 June 2017. The Applicant has failed to provide a response to the Commission’s correspondence.

[3] On 9 June 2017 further correspondence was sent to the Applicant (via express post and his email address) requiring him to advise the Commission by Tuesday 13 June 2017 why his application should not be dismissed. To date no response has been received.

[4] The hearing of the matter proceeded by telephone on 16 June 2016. The Respondent was in attendance. My Associate made three attempts to phone the Applicant however could not get through to the phone number he had provided on his Form F2 application for unfair dismissal.

[5] The Applicant has:

(a) failed to attend the conciliation on 26 April 2017; and

(b) failed to comply with directions

(c) failed to respond to correspondence from the Commission; and

(d) failed to attend the hearing.

[6] In light of the Applicants failure to respond, I have determined to dismiss the application for want of prosecution pursuant to s.587 of the FW Act, which provides as follows:

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.

[7] I am satisfied that, in determining whether to dismiss a matter on its own initiative, the Commission is not limited to matters specified in s.587(1)(a) to (c). The opening words ‘Without limiting when FWC may dismiss a matter’, clearly confers a broader discretion.

[8] After considering all the material, I have decided to dismiss the Applicant’s application pursuant to s.587(1)(c) of the FW Act. An order to this effect will be issued with this decision.

COMMISSIONER

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