Dale Robinson v SPC Operations Pty Ltd
[2023] FWC 704
•23 MARCH 2023
| [2023] FWC 704 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dale Robinson
v
SPC Operations Pty Ltd
(U2023/345)
| COMMISSIONER YILMAZ | MELBOURNE, 23 MARCH 2023 |
Application for an unfair dismissal remedy – matter dismissed under s.587 at the Commission’s initiative.
On 12 January 2023, Mr Dale Robinson (the Applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleged he was unfairly dismissed by SPC Operations Pty Ltd (the Respondent) on 29 December 2022.
The Applicant states in his Form F2 Unfair Dismissal Application that he commenced employment with the Respondent in September 1996 and that his dismissal took effect on 29 December 2022. The employer response also corroborated the termination date specified in the Applicant’s Form F2. However, it states that the Applicant commenced working for the Respondent on 29 July 2002.
The matter was listed for conciliation before a staff conciliator on 17 February 2023. The staff conciliator determined the matter could not be resolved at conciliation. The application was subsequently allocated to me, and my chambers issued a notice of listing to the parties on 22 February 2023 for a Mention/Directions hearing for 3 March 2023.
On 3 March 2023, my chambers made 3 attempts to call the Applicant and left three voicemail messages advising him he was required to attend the Mention/Directions hearing. The hearing proceeded, and the Applicant failed to attend. Following the hearing, I issued directions that the Applicant was to file his submissions by 5pm on Friday 17 March 2023.
The Applicant failed to file any submissions.
On 20 March 2023 my chambers emailed the Applicant advising that he had failed to comply with the filing dates set out in the directions issued on 3 March 2023 and that he must file by close of business.
At 9:59pm that day, my chambers received an email from the Applicant simply stating, ‘Thank you, will do.’
On 21 March 2023, at 9:26am, my Chambers sent out an email, listing the matter for a non-compliance hearing scheduled for 9:00am on 22 March.
On the day of the non-compliance hearing the Respondent was present and the Applicant could not be contacted. My chambers attempted to telephone the Applicant 3 times and 3 voicemail messages were left requesting his urgent attendance. No response was received.
To date, the Applicant has not provided any response as to why his Application should not be dismissed.
The Legislation
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.”
Consideration and Conclusion
On conclusion of the noncompliance proceedings, having considered the failure of the Applicant to attend the Mention/Directions hearing, comply with directions, respond to communication from the Commission, attend the non-compliance hearing and explain his failure to comply or discontinue, I am satisfied that the application for a remedy for an unfair dismissal should be dismissed for want of prosecution.
Further at the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).
In this instance the Applicant has not complied with the directions. I am also satisfied that through those attempts to contact him, the Applicant was on notice of the risk that failure to contact the Commission, that his matter may be dismissed.
On this basis, the application is dismissed for want of prosecution pursuant to s.587 of the Act.
An order[1] to that effect will be issued with this decision.
COMMISSIONER
[1] PR760549.
Printed by authority of the Commonwealth Government Printer
<PR760548>
0
0
0