Dennis Williams v Programmed Skilled Workforce Limited

[2017] FWC 6331

[2017] FWC 6331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dennis Williams
v
Programmed Skilled Workforce Limited
(U2017/10378)

DEPUTY PRESIDENT DEAN SYDNEY, 1 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 25 September 2017, Mr Dennis Williams made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Williams’ application states that he commenced employment with Programmed Skilled Workforce Limited (the Respondent) on 1 March 2017 and that his dismissal took effect on 19September 2017.

[3] The application was listed for telephone conciliation before a Fair Work Commission conciliator on 27 October 2017. However, the conciliation did not take place as Mr Williams was not contactable at that time.

[4] The matter was allocated to me to determine jurisdictional objections to the application raised by the Respondent.

[5] On 13 November 2017, my chambers sent the following correspondence by email and express post to Mr Williams:

“Dear Mr Williams

Re: U2017/10378 – Dennis Williams v Programmed Skills Workforce Limited

I refer to your application for unfair dismissal remedy that you lodged with the Fair Work Commission (the Commission) on 25 September 2017.

Your application has now been allocated to Deputy President Dean.

A conciliation was listed in this matter on 27 October 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, on 16 October, 18 October, 19 October, 24 October, 27 October and 3 November 2017. The Commission has also sent you correspondence by email and post on 24 October, 30 October and 3 November 2017.

Despite our repeated 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]”

[6] On 15 November 2017, Mr Williams sent an email to the Commission which stated: “I wish to go ahead with this matter as you are aware I drive for a living and am unable to answer my phone.”

[7] On 16 November 2017 further correspondence was sent to Mr Williams by email and express post:

“Dear Mr Williams,

Re: U2017/10378 – Dennis Williams v Programmed Skills Workforce Limited

Your application for an unfair dismissal remedy has been allocated to Deputy President Dean of the Fair Work Commission (the Commission).

It appears from your application and the employer’s response that you may not have been employed for the minimum employment period required under the Fair Work Act 2009 (the Act).

Sections 382 and 383 of the Act require an applicant to be ‘an employee who has completed a period of employment with his or her employer of at least the minimum employment period’.

If the employer is a small business employer (ie has less than 15 employees), the minimum period of employment is one year.

If the employer is not a small business employer the minimum period of employment is six months.

If you were employed by previous owners of your employers business, then your previous service may count towards your period of employment. Please see the Commission’s Unfair Dismissal Benchbook, in particular pages 53-55 & 76: have advised that you were employed from 1 March 2017 and dismissed on 19 September 2017.

Programmed Skills Workforce Limited has advised that you were employed from 28 August 2017 onwards. Unfortunately, if this is the case, the Commission has no jurisdiction to deal with your application, as the six month minimum employment period has not been met.

Within 7 days of the date of this letter, you are directed to provide a statement, with any documents or evidence to support your claim that you have served the minimum employment period and were employed by Programmed Skills Workforce Limited for more than six months.

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.

If you do not provide a statement within 7 days of the date of this letter, I will consider your application on the material before me without further notice to you and your application may be dismissed.

If you have any questions in relation to the above please contact my chambers on [telephone number].”

[8] Mr Williams did not respond to the Commission’s correspondence.

[9] On 24 November 2017, correspondence was sent to Mr Williams noting that he had previously been directed to provide a statement by 23 November 2017 but had not done so. Mr Williams was given until 4pm on 28 November 2017 to respond. Mr Williams was advised that his application may be dismissed in the absence of any response.

[10] To date, Mr Williams has not provided any response to the Commission’s correspondence of 16 and 24 November 2017 nor has he sought any extension of time to so.

[11] 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.

[12] 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).

[13] 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.

[14] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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