Blake Kelly v Super Butcher Australia Pty Ltd

[2023] FWC 1262

[2023] FWC 1262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Blake Kelly
v

Super Butcher Australia Pty Ltd

(U2023/1949)

COMMISSIONER HUNT BRISBANE, 30 MAY 2023

Application for an unfair dismissal remedy - applicant shown no willingness to prosecute case – failure to attend the conference – non-compliance with Commission directions – application dismissed.

1. On 9 March 2023, Mr Blake Kelly made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from Super Butcher Australia Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.

1. Mr Kelly nominated 22 February 2023 as the date of his dismissal. In a Form F3 completed by the Respondent, it is accepted that the dismissal date was 22 February 2023. Accordingly, the application has been made within the 21-day time limit prescribed by the Act.

1. On 24 April 2023, I issued directions requiring the parties to file material by certain dates and notified the parties of a telephone conference to be convened on 27 April 2023.

1. Mr Kelly did not participate in the telephone conference on 27 April 2023, despite numerous attempts by my Associate to contact him. Correspondence was emailed to the parties from my chambers reminding Mr Kelly of his obligation to file material by no later than 12 May 2023, pursuant to the directions issued by me.

1. Mr Kelly did not file any materials to my chambers by 12 May 2023.

1. On 17 May 2023, I informed the parties the matter would be listed for a Non-Compliance Hearing on 24 May 2023. Mr Kelly was informed that failure to participate in the Non-Compliance Hearing may have consequences for his application, and I may decide to dismiss the application for want of prosecution, in accordance with s.587 of the Act.

1. On 24 May 2023, I conducted a telephone Non-Compliance Hearing. Numerous attempts were made by my Associate to contact Mr Kelly, without success. Mr Huffines, Compliance and Operations Manager appeared for the Respondent. I informed Mr Huffines of the numerous attempts made to contact Mr Kelly, without success and indicated my preliminary view was that I would dismiss the application pursuant to s.587 of the Act.

1. Section 587 of the Act 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.”

1. After considering the numerous attempts to engage Mr Kelly in his application to the Commission, including his failure to attend the conference and Non-Compliance Hearing without a reasonable explanation, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to s.587(3)(a) of the Act. Mr Kelly has demonstrated an unwillingness to prosecute his own application and consequently I find that the application has no reasonable prospects of success.

1. An Order to this effect will be issued with this decision.

COMMISSIONER

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