Jake Annetts v Bago Hardwood Saw Mill

[2020] FWC 5171

[2020] FWC 5171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jake Annetts
v
Bago Hardwood Saw Mill
(U2020/7353)

DEPUTY PRESIDENT DEAN SYDNEY, 28 SEPTEMBER 2020

Application for an unfair dismissal remedy – application dismissed.

[1] On 27 May 2020, Mr Jake Annetts (the Applicant) made an application for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009. The Applicant claims that he had been unfairly dismissed from his employment by Bago Hardwood Saw Mill (the Respondent).

[2] The Respondent objected to the application on the basis that the Applicant has not met the minimum employment period as he was a casual employee who was not regularly and systematically engaged and had no reasonable expectation of continuing employment. The Respondent further contends that the Applicant was not dismissed and his employment came to an end because he resigned.

[3] The Application was listed for hearing on 1 October 2020 and Directions were issued requiring parties to file material in support of their respective case. On 7 September 2020 the Respondent filed an outline of submissions and witness statement in compliance with the Directions. The Applicant was directed to file his material by 21 September 2020 but no material or request for an extension were received from him.

[4] On 22 September 2020 the Commission wrote to the Applicant noting his non-compliance with the Directions and requiring him to file his material by 4 pm on 23 September 2020. The Applicant was advised that failing to respond would result in the dismissal of his application.

[5] The Commission made a number of unsuccessful attempts to telephone the Applicant and voicemails were left on 23 and 25 September seeking a return call. No response was received from the Applicant.

[6] Section 587 of the Act provides the Commission with a broad discretion to dismiss an application. It reads:

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.

[7] I am satisfied that in failing to comply with Directions and failing to respond to the Commission’s correspondence, the Applicant has not demonstrated an intention to pursue his unfair dismissal application. Accordingly, I have decided to dismiss the application for want of prosecution pursuant to s.587 of the Act.

[8] An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

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