Brett Michael Williams v Chandler Macleod

[2021] FWC 6710

[2021] FWC 6710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Brett Michael Williams
v
Chandler Macleod
(C2021/5129)

COMMISSIONER P RYAN SYDNEY, 31 DECEMBER 2021

Application to deal with contraventions involving dismissal; dismissed pursuant to s.587 of the Fair Work Act 2009

Background

[1] Mr Brett Michael Williams (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal (Application).

[2] By the Application, the Applicant alleges he was dismissed from his employment with Chandler (Respondent) on 8 August 2021 in contravention of Part 3-1 of the FW Act.

[3] The Respondent objected to the Application on the basis that it did not dismiss the Applicant. The matter was subject to a conference before a Commission staff conciliator on 15 November 2021 but did not resolve. The matter was subsequently allocated to my Chambers for determination of the jurisdictional objection.

[4] The matter was listed for case management and directions hearing on 22 November 2021. This did not go ahead as the Applicant failed to attend without notice to the Commission and was unable to be contacted despite two attempts.

[5] On the 22 November 2021, my Chambers sent correspondence to the Applicant requesting an explanation for the Applicants non-attendance at the conference on 22 November 2021 and requested a response from the Applicant regarding an amendment to the legal name of the Respondent.

[6] On the 23 November 2021, the Applicant sent an email to my Chambers advising that he wishes to continue the matter yet was unable to attend the case management and directions hearing due to being “caught out by rising flood waters.” The Applicant did not provide a respond to the amendment the legal name of the Respondent.

[7] On the 25 November 2021, my Chambers sent further correspondence requesting the Applicant to provide a response to our correspondence sent on 22 November 2021. A response was to be provided by 25 November 2021.

[8] On the 29 November 2021 and 1 December 2021 my Chambers received voice messages from the Applicant regarding our correspondence. On the 1 December my Chambers advised the Applicant is to respond to our correspondence in writing as soon as possible. The Applicant did not respond.

[9] On 16 December 2021, two further attempts to contact the Applicant both failed.

[10] On 17 December 2021, my Chambers sent further correspondence to the Applicant requesting an explanation for his failure to respond to correspondence from Chambers. The Applicant was advised that in the absence of a response, the Application may be dismissed.

[11] The Applicant did not respond.

Legislative Provisions

[12] Section 587 of the FW 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.”

[13] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW 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).

Consideration

[14] Taking into consideration the Applicant’s repeated failure to respond to correspondence from the Commission, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

[15] For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

Disposition

[16] The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

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