Jamie Eves v Aestec Pty Ltd

[2024] FWC 3178

[2024] FWC 3178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jamie Eves
v

Aestec Pty Ltd

(U2024/10393)

COMMISSIONER HUNT BRISBANE, 18 NOVEMBER 2024

Application for an unfair dismissal remedy

1. On 4 September 2024, Mr Jamie Eves made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with Aestec Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.

1. According to the Commission’s records, the matter was listed for a staff conciliation on 10 October 2024. The conciliation was terminated after approximately 30 minutes after Mr Eves was disconnected from the telephone conference. The Commission’s staff conciliator attempted to contact Mr Eves four times without success after the disconnection. Later the same day, Mr Eves was successfully contacted, and he informed the staff conciliator that he did not wish to speak with the Respondent.

1. Following the conciliation, correspondence was issued to the parties requesting that they advise whether they wished to proceed with a further staff conciliation. The Respondent advised that it wished to participate in a further conciliation. Mr Eves did not respond to this correspondence. Accordingly, a further staff conciliation did not take place, and the matter was allocated to me on 22 October 2024.

1. On 23 October 2024, I issued directions requiring the parties to file material by certain dates and notified the parties of a telephone conference to be convened on 30 October 2024. Mr Eves did not attend the conference despite multiple attempts to contact him. On account of Mr Eves’ failure to attend the conference, I caused my chambers to issue correspondence to the parties, advising that the conference could not proceed due to Mr Eves’ non-attendance. The correspondence stated that the Directions issued by me on 23 October 2024 remained in effect, and Mr Eves was required to file and serve material in support of his application by no later than 13 November 2024.

1. Mr Eves did not file any material in accordance with the Directions. Accordingly, on 14 November 2024, I notified the parties of a Non-Compliance Hearing to be held at 3:30pm on 18 November 2024.

1. Around 3:30pm on 18 November 2024, my Associate made an attempt to contact Mr Eves by telephone for the purpose of the Non-Compliance Hearing. Mr Eves answered the telephone call, and upon learning the nature of call, disconnected the call. Subsequent attempts to contact Mr Eves were unsuccessful. The Non-Compliance Hearing was therefore vacated.

1. 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.”

1. After considering the numerous attempts to engage Mr Eves in his application to the Commission, including his failure to attend the preliminary conference and Non-Compliance Hearing and his failure to comply with Directions issued by me, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to s.587(3)(a) of the Act. Mr Eves has demonstrated an unwillingness to prosecute his own application and consequently I find that the application has no reasonable prospects of success.

1. An Order to this effect will be issued with this decision.

COMMISSIONER

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