Brett Humphreys v UGL Rail Services Pty Limited T/A UGL
[2017] FWC 6296
•29 NOVEMBER 2017
| [2017] FWC 6296 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brett Humphreys
v
UGL Rail Services Pty Limited T/A UGL
(U2017/11171)
| Deputy President Dean | SYDNEY, 29 NOVEMBER 2017 |
Application for an unfair dismissal remedy.
On 19 October 2017, Mr Brett Humphreys made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
Mr Humphreys’ application states he commenced employment with UGL Rail Services Pty Ltd T/A UGL (UGL) on 1 June 2015 and that his dismissal took effect on 30September 2017.
The application was listed for telephone conciliation before a Fair Work Commission conciliator on 9 November 2017, however, the conciliation could not take place as Mr Humphreys was not contactable at that time.
The matter was allocated to my chambers to determine jurisdictional objections to the application raised by UGL.
On 13 November 2017, my chambers sent the following correspondence by email and express post to Mr Humphreys:
“Dear Mr Humphreys,
Re: U2017/11171 – Brett Humphreys v UGL Rail Services Pty Ltd
I refer to your application for unfair dismissal remedy that you lodged with the Fair Work Commission (the Commission) on 19 October 2017.
Your application has now been allocated to Deputy President Dean.
A conciliation was listed in this matter on 9 November 2017, however it could not take place as the conciliator was unable to contact you at the time.
The Commission has made a number of attempts to contact you by telephone and email, on 3 November and 9 November 2017.
Despite our requests for you to contact the Commission, unfortunately we have not received a response from you.
You are directed to advise our chambers within 7 days if you would like to continue with your unfair dismissal application.
If we do not hear from you by close of business on Monday, 20 November 2017, then your application may be dismissed without any further notice to you.
Alternatively, you may decide to discontinue your application. If you decide to discontinue your application, you can advise our chambers via email or telephone that you no longer wish to pursue your claim, or you may file a Form F50 Notice of Discontinuance. It is important to note that discontinuing an application means that the matter cannot be pursued at a later time.
Please contact our chambers as a matter of urgency on [telephone number], or by email [email protected]”
A further attempt was made to contact Mr Humphreys by telephone on 13 November 2017. The Commission left a voicemail message asking Mr Humphreys to confirm whether or not he wished to proceed with his application.
On 22 November 2017 further correspondence was sent to Mr Humphreys by email as follows:
“Dear Mr Humphreys
Please note the correspondence sent below and attached on 13 November 2017.
Unfortunately we have not received a response from you.
You are directed to respond by 12pm on Friday, 24 November 2017, otherwise your application may be dismissed and a Decision will be issued accordingly.
If you do not wish to proceed with your unfair dismissal application, please advise our chambers as a matter of urgency by return email or by telephone. If you decide to discontinue and withdraw your application, your filing fee will be refunded.”
To date, Mr Humphreys has not replied to any of the Commission’s correspondence.
Section 587(1) of the Act 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.
(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
An order to that effect will issue with this decision.
DEPUTY PRESIDENT
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