Daniel Golledge v Hilltop Meats Pty Ltd T/A Hilltop Meats
[2018] FWC 5980
•26 SEPTEMBER 2018
| [2018] FWC 5980 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Golledge
v
Hilltop Meats Pty Ltd T/A Hilltop Meats
(U2018/6805)
| DEPUTY PRESIDENT DEAN | SYDNEY, 26 SEPTEMBER 2018 |
Application for an unfair dismissal remedy.
On 3 July 2018, Mr Daniel Golledge made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.
Mr Golledge’s application states that he commenced employment with Hilltop Meats Pty Ltd T/A Hilltop Meats (Hilltop Meats) in October 2014 and that his dismissal took effect on 11 June 2018.
Following an unsuccessful telephone conciliation, the application was allocated to me as it appeared that Mr Golledge’s application had been made outside the 21 day period prescribed by s.394(2) of the Act. Correspondence to that effect was sent to Mr Golledge on 23 August 2018, which required him to file a statement explaining why the Commission should extend time for the lodgement of his application.
On 31 August 2018, correspondence was sent to Mr Golledge noting that he had previously been directed to file a statement in the Commission but had not done so. Mr Golledge was given until 4:00pm on 3 September 2018 to respond. Mr Golledge was advised that in the absence of any response being received, his application may be dismissed.
On 4 September 2018 an email was received from Mr Golledge which read:
“The information from the link that I received from fair work stated that the 21 day started the day after I was terminated so I assume that was in my 21 day period …”
On 7 September 2018 my associate telephoned Mr Golledge and explained that his application had been filed one day late. He was advised that if he wished to continue with his application he must file a statement, by 11 September 2018, providing reasons why the Commission should extend the time for lodgement of his application, as requested in the correspondence sent to him on 23 August 2018.
On 11 September 2018 Mr Golledge responded by email, indicating that he had been given notice of his termination by email on a public holiday and had not read it until the following day. As a result, his application was not late. This was a different explanation from what has previously been provided by Mr Golledge.
On 12 September 2018, the parties were informed that the application would be listed for a telephone conference on 17 September 2018.
Shortly before the commencement of the telephone conference on 17 September, Mr Golledge telephoned my chambers to indicate that he could not participate as he was required to work overtime on that day. The telephone conference was rescheduled to 3:30pm on Thursday, 20 September 2018.
On 20 September 2018, a number of unsuccessful attempts were made to contact Mr Golledge at the time scheduled for the conference. He did not answer any of the calls or return any messages.
On 20 September 2018, correspondence was sent to Mr Golledge asking him to provide, by close of business on 24 September 2018, a compelling reason as to why his application should not be dismissed in the circumstances.
On 24 September 2018, my chambers received an email from Mr Golledge which read:
“Sorry I didn’t not (sic) answer my phone on Thursday as I was travelling home from scone to junee to see my family as I have to work 6 hours from home due to the circumstances from hilltop meat I feel that my application sould (sic) not be withdrawn.”
Relevant legislation
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.
Consideration
The words, “Without limiting when FWC may dismiss an application”, in 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).
There is no doubt that Mr Golledge was aware of the conferences scheduled on both 17 and 20 September 2018. I do not consider Mr Golledge’s explanation for his non-attendance on 20 September satisfactory, particularly in circumstances where the matter was rescheduled for his convenience and was listed by telephone. Mr Golledge was given advance notice of the rescheduled time and did not advise that he had a difficulty with the scheduled day or time, nor did he make a request that the matter be rescheduled to a different day or time. He did not provide any notice to the Commission that he would not be attending.
Mr Golledge has been given numerous opportunities to pursue his application. He has not done so. In these circumstances, 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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