Christopher Prestidge v Active Asphalt

[2013] FWC 7788

[2013] FWC 7788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Christopher Prestidge
v
Active Asphalt
(U2013/10908)

COMMISSIONER HAMPTON ADELAIDE, 8 OCTOBER 2013

Alleged unfair dismissal - failure by applicant to file materials in support of application or to participate in the process - application dismissed.

[1] On 27 June 2013, Christopher Prestidge made an application for a remedy in relation to an alleged unfair dismissal under s.394 of the Fair Work Act 2009. His employment was terminated by Active Asphalt on 18 June 2013.

[2] The matter was the subject of a telephone directions conference before the Commission on 26 August 2013 at which time both parties participated and directions were issued for the filing of materials in support of their respective positions. I note that the basis of the application and the remedy being pursued by Mr Prestige was not clear from the application itself and the materials to be filed were designed to clarify and justify his position.

[3] Mr Prestidge failed to comply with these directions despite several assurances to my Chambers that he would file the materials. The matter was relisted at the request of Active Asphalt, for further directions on 26 September 2013, at which time Mr Prestidge did not participate and the following directions were issued the following day in his absence:

“... ...

1. The hearingdate of Tuesday 8 October 2013 hasnow been vacated due to non compliance by the Applicant, Christopher Prestidge, with the directions issued on 27 August 2013.

2. If the applicant wishes to proceed with the application he is by Friday 4 October 2013, tofile in the FWC and provide to the Respondent, Active Asphalt, an outline of argument including the basis of his application and what remedy he seeks from the Commission and why. The applicant is also to file any evidentiary material, including, witness statements and any other written materials to be relied upon in his unfair dismissal application (see explanation of these requirements below).

3. If the applicant fails to file and provide the materials as directed, the matter will be dismissed without further hearing or notice on the basis that it has no reasonable prospect of success given the absence of any materials in support of the application.

... ...”

[4] Mr Prestidge has failed to contact the Commission or provide any materials in support of his application despite being afforded this further opportunity to do so. As indicated in the directions of 27 September 2013, the Commission will now determine the matter in light of these developments.

[5] 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”

[6] This matter does not involve an application under s.365 or s.773 and the Commission may act of its own motion. Further, Mr Prestige was earlier given notice that the application would, in the event of non compliance, be considered pursuant to s.587(1)(c) and determined without further notice or hearing.

[7] Mr Prestidge has not filed any materials in accordance with the directions, and has not further participated in these proceedings. As a result, and despite reasonable opportunity to advance his application, there is no evidence in support of the matter and the employer opposes much of the factual and other grounds of the application.

[8] Accordingly the application can have no reasonable prospects of success and the matter should be dismissed.

[9] I order accordingly.

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