Garry Druett v Woolworths Limited

[2013] FWC 4305

[2013] FWC 4305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garry Druett
v
Woolworths Limited
(U2013/8134)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 JULY 2013

Application dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] On 27 March 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Garry Druett (the Applicant). The Applicant named Woolworths Limited (Woolworths) as the employer.

[2] Section 609(1) of the Act provides that after consultation with other Commission Members, the President may issue procedural rules in relation to the practice and procedure to be followed by the Commission or the conduct of business in relation to matters allowed or required to be dealt with by the Commission. Section 609(2) of the Act states that the procedural rules may provide for the requirement for making an application to the Fair Work Commission (the Commission).

[3] Rule 6.2 of the Fair Work Australia Rules 2009 (the Rules) provides:

6.2 Subject to these Rules:

(a) an application to FWA must be made using the form in Schedule 2 that is specified for the purpose in Schedule 1; and

(b) notice must be given to FWA using the form in Schedule 2 that is specified for the purpose in Schedule 1.

[4] Schedule 1 of the Rules provides for application for Unfair Dismissal Remedy in accordance with Form 2.

[5] The Form 2 filed by the Applicant in the Commission was not made in accordance with Schedule 2 of the Rules.

[6] As such, the Applicant was directed to file by close of business 28 June 2013, documentary material, including payslips or group certificates which evidenced his employment with Woolworths.

[7] The Applicant failed to comply with this direction. However, the Commission received numerous emails which were not responsive to my direction. These emails were sent to a number of other government bodies and organisations and contained information similar to what was noted on his application.

[8] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[9] As the Applicant has failed to comply with directions, I have decided to determine the application on the papers.

[10] A person may be protected from unfair dismissal if they are an employee. There is no evidence that the Applicant was employed by Woolworths Ltd and as such the application cannot succeed.

[11] 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.

[12] After considering all the material, I have decided to dismiss the Applicant’s application pursuant to s.587(1)(c) of the Act as it has no reasonable prospects of success. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR538459>