Brenton Moffitt v Hicube Logistics Pty Ltd

[2016] FWC 983

[2016] FWC 983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brenton Moffitt
v
Hicube Logistics Pty Ltd
(U2015/16415)

COMMISSIONER LEE MELBOURNE, 12 FEBRUARY 2016

Application for relief from unfair dismissal - failure to prosecute application - no reasonable prospects of success - application dismissed.

[1] This matter involves an application made to the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Brenton Moffitt (the Applicant) claims that he was unfairly dismissed from his employment with Hicube Logistics Pty Ltd (the Respondent).

[2] The application was made by the Applicant on 1 December 2015. The Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy, lodged by the Respondent on 22 December 2015, objected to the application on the basis that the business is a small business and that the Applicant’s employment does not meet the minimum employment period.

[3] On 31 December 2015, the matter was listed for Jurisdiction (Minimum Employment Period – Small Business) Conference/Hearing on 29 January 2016. Directions were issued for the Respondent to file and serve an outline of submissions, witness statements and other documentary material it intends to rely on in support of its jurisdictional objection by no later than noon on 11 January 2016. Directions were issued for the Applicant to file and serve an outline of submissions, witness statements and other documentary material it intends to rely on in opposition to the jurisdictional objection by no later than noon on 22 January 2016.

[4] The Respondent and the Applicant failed to comply with the directions.

[5] On 21 January 2016 the Applicant’s Representative (Unfair Dismissals Australia Pty Ltd) filed a Form F54 – Notice of Representative Ceasing to Act.

[6] In the afternoon of 28 January 2016 the Respondent’s Representative (E C Legal Pty Ltd) sent an email to my chambers advising that the matter had settled between the parties and filed a Form F54 – Notice of Representative Ceasing to Act. The email attached correspondence which had been sent from EC Legal Pty Ltd to the Applicant requesting him to file a Form F50 – Notice of Discontinuance or alternatively advise the Commission that the matter has settled and that the matter be withdrawn.

[7] Following receipt of this correspondence my chambers sent an email to the Applicant requesting the he advise chambers by 6.00pm on 28 January 2016 if this matter had been resolved and the application was discontinued. My chambers also attempted to contact the Applicant by telephone without success. The Applicant did not provide a response or contact chambers prior to the Hearing.

[8] The Applicant and the Respondent failed to attend the Jurisdiction Conference/Hearing on 29 January 2016.

[9] On 29 January 2016 at 10.08pm the Applicant sent correspondence to my chambers in the following terms;

“The matter has not been sorted by the parties

Please help me make sence of this”

[10] On 1 February 2016, my chambers sent correspondence to the Applicant in the following terms;

“I refer to the above matter and to your email below received at 10.08pm on 29 January 2016.

This matter was listed for Hearing at 9.30am on 29 January 2016.

On 28 January 2016 the Commission was advised that the matter had been settled between the parties (emails attached below).

Following receipt of this correspondence, chambers sent you an email requesting that you advise if the matter had been resolved and that the application was withdrawn by 6.00pm on 28 January 2016 and the Hearing would be vacated. Chambers did not receive a response to this email and also attempted to contact you by telephone without success.

This matter remained listed for Hearing at 9.30am on 29 January 2016; however, you failed to attend the Hearing.

The Commissioner has asked that you provide reasons and evidence as to why you did not attend the Hearing.

If a response is not provided by 5.00pm Monday 8 February 2016 the Commissioner will dismiss the application without further notice.”

[11] No further correspondence was received from the Applicant.

[12] The Applicant failed to attend the Commission to prosecute his application. When asked by the Commission to provide a reason for his non-attendance, the Applicant did not provide a response.

[13] I have determined that in light of the Applicant’s failure to prosecute the application, the Applicant’s application has no reasonable prospects of success, and pursuant to s.587(1)(c) of the Act, the application is dismissed.

[14] An order giving effect to this decision has been issued separately in PR577059.

COMMISSIONER

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