Fabian Robinson v The Trustees for CrossKeys Unit Trust T/A CrossKeys Recruitment

[2013] FWC 9083

[2013] FWC 9083

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fabian Robinson
v
The Trustees for CrossKeys Unit Trust T/A CrossKeys Recruitment
(U2012/15125)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 NOVEMBER 2013

Application for relief from unfair dismissal dismissed.

[1] On 16 November 2012, Mr Fabian Robinson made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Robinson’s employment had been terminated by The Trustees for CrossKeys Unit Trust T/A CrossKeys Recruitment (CrossKeys) on 9 November 2012.

[2] A dispute over whether the application was filed within 14 days was determined by Commissioner Bissett on 12 February 2013. 1

[3] Directions were issued which required Mr Robinson to file an outline of submissions and any witness statements by 27 May 2013. The matter was subsequently listed to be heard from 1 July 2013.

[4] On 27 May 2013, Mr Robinson requested an extension of time to file his witness statements, submissions and other documentary material as he said he had misread the notice of listing and did not think anything needed to be done until 1 July 2013. This request was granted and Mr Robinson was now required to file his material by 17 June 2013.

[5] On 17 June 2013, Mr Robinson advised that he had almost finished preparing his material but he needed until close of business to file his submissions.

[6] Mr Robinson did not file any material and did not take any steps to have the timetable varied. The matter was then listed for a non compliance hearing before me on 28 June 2013.

[7] At the hearing Mr Robinson suggested that he had sent his material 2 and that some technical problem must have prevented its delivery. At the hearing, Mr Robinson was granted a one week extension of time to file his material.

[8] On 5 July 2013, Mr Robinson sent correspondence to the Fair Work Commission (the Commission) which advised that he would not be submitting material to support his application. Attached to this correspondence was a medical certificate dated 5 June 2013 from Mr Robinson’s treating psychiatrist. That certificate did not advise that Mr Robinson could not prepare his submissions and witness statements.

[9] On 10 July 2013, the Commission wrote to Mr Robinson requesting a medical certificate which confirmed his capacity to participate in further conciliation.

[10] Mr Robinson did not file a medical certificate. As such, on 13 September 2013, I convened a mention to discuss the progress of this matter, however Mr Robinson did not participate in the mention. Following this, I wrote to Mr Robinson and afforded him a further opportunity to file his material by 27 September 2013. I further directed Mr Robinson to file a medical certificate if he was not able to submit his material.

[11] On 27 September 2013, Mr Robinson filed a medical certificate valid until November 2013.

[12] On 7 November 2013, I issued further directions to Mr Robinson requesting that he file material and submissions, by 15 November 2013, as to why his application should not be dismissed pursuant to s.587(1)(c) of the Act.

[13] Mr Robinson failed to send any correspondence to the Commission or provide a further medical certificate.

[14] Section 587(1) 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.”

[15] I have had regard to history of this matter and in particular Mr Robinson’s failure to provide any material to support his application or provide the Commission with up to date medical certificates that would explain his failure to comply with the directions issued by the Commission. As a result of Mr Robinson’s failure to prosecute his claim, his claim has no reasonable prospects of success.

[16]
I have therefore determined to dismiss the application under s.587(1)(c) of the Act.

DEPUTY PRESIDENT

 1   [2013] FWC 920.

 2   Transcript PN 8

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