Diego Nunes v AWX Pty Ltd

[2021] FWC 4136

[2021] FWC 4136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Diego Nunes
v
AWX Pty Ltd
(C2021/1377)

COMMISSIONER HUNT BRISBANE, 15 JULY 2021

Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – applicant notified withdrawal of application.

[1] On 11 March 2021, Mr Diego Nunes (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Relevant background to this dispute has been outlined in a previous decision issued by me on 7 May 2021. 1

[2] On receiving the application, the Commission is obliged to deal with this type of dispute other than by arbitration. 2 It may do this by mediation, conciliation or by making a recommendation or expressing an opinion.3 However, if there is a dispute about whether the Applicant has been dismissed, the Commission must first determine that point before it can deal with the application further.4

[3] The Respondent to the dispute is AWX Pty Ltd (the Respondent/AWX), a labour hire company. In its Form F8A – Employer response, AWX raised a jurisdictional objection on the grounds that Mr Nunes was not terminated on the employer’s initiative pursuant to s.386(1)(a) of the Act.

[4] Directions were therefore issued for filing of materials addressing the jurisdictional objection.

[5] On 26 May 2021, correspondence was sent to Mr Nunes and copied to the Respondent, outlining Mr Nunes’ failure to file materials, as directed. I sought a response from Mr Nunes by Monday, 21 May 2021 (typographical error – it should have read 31 May 2021), and outlined in that correspondence that in the event no response was received, my decision would be determined on the papers on the material already filed. The Respondent was advised that it was not at that time required to file any reply materials.

[6] On 31 May 2021, not having received a response from Mr Nunes, correspondence was sent informing him that the Commission had not heard from Mr Nunes since 22 April 2021, and if material was not filed by close of business 31 May 2021, the decision would be reserved and determined on the materials filed.

[7] No response or materials were received from Mr Nunes. On 1 June 2021, correspondence was sent from my chambers informing the parties the decision was now reserved.

[8] In preparing the decision, on 15 June 2021, correspondence was sent from my chambers directing further evidence from the Respondent. The Respondent complied with the direction. Mr Nunes was afforded an opportunity to reply to the Respondent’s new material by 23 June 2021.

[9] On 20 June 2021, Mr Nunes sent the following correspondence:

“The Commissioner has failed to follow the Applicants form 50 where the Applicant nominates AWX and State of Queensland as the two respondents on the C2021/1377 matter. Therefore, the Applicant will not give continuity to the Commissioner request stated below.

The Applicant will be going through private legal resources to resolve this matter.”

[10] On 21 June 2021 the following correspondence was sent to the parties:

“Dear parties,

Commissioner Hunt’s chambers has no record of the Applicant having filed a Form 50 – Notice of discontinuance.

The Applicant is kindly requested to forward to chambers, copying in the Respondent the completed form. Upon receipt of the completed form the Commission will consider the application discontinued.”

[11] On 24 June 2021, the following correspondence was sent to the parties:

“Dear parties,

Reference is made to the above matter and below email sent on Monday 21 June 2021.

Can the Applicant please kindly send through, copying in the Respondent, the completed Form 50 – Notice of discontinuance.”

[12] Mr Nunes has not responded to the above communications. It is unclear on which date Mr Nunes sent to the Commission a Form 50 - Notice of discontinuance. The application will be treated as having been withdrawn by virtue of Mr Nunes’ email communication at [9] above.

[13] Accordingly, the Commission will close its file.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   [2021] FWC 2323.

 2   Fair Work Act 2009 s.368.

 3   Ibid.

 4   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [67].