Jeffrey Whitehead v Circa 1821 Admin Pty Ltd T/A Salamanca Whiskey and Wine Bar

[2017] FWC 2553

[2017] FWC 2553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeffrey Whitehead
v
Circa 1821 Admin Pty Ltd T/A Salamanca Whiskey and Wine Bar
(U2017/1386)

COMMISSIONER LEE MELBOURNE, 18 MAY 2017

Application for an unfair dismissal remedy - application dismissed.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Jeffrey Whitehead (the Applicant) claims that he was unfairly dismissed from his employment with Circa 1821 Admin Pty Ltd T/A Salamanca Whiskey and Wine Bar (the Respondent).

[2] On 9 February 2017, the Applicant made an application for remedy for unfair dismissal.

[3] On 27 March 2017, the matter was listed for Arbitration Conference/Hearing on 24 May 2017 – 26 May 2017 at the Fair Work Commission (the Commission) in Hobart. Directions were issued for the Applicant to file and serve on the Respondent an outline of submissions and any witness statements and other documentary material the Applicant intends to rely on in support of his application by no later than noon on Tuesday, 18 April 2017.

[4] The Applicant failed to comply with the directions.

[5] The matter was listed for Non-Compliance Hearing by Telephone at 09:30am on 28 April 2017. The Applicant and the Respondent failed to attend the Non-Compliance Hearing. Numerous attempts were made to connect the Applicant and the Respondent by telephone without success and the Non-Compliance Hearing could not proceed.

[6] On 10 May 2017 my chambers sent correspondence to the Applicant advising that in light of the Applicant’s failure to comply with directions of the Commission and failure to attend a hearing of the Commission, the application may be dismissed pursuant to s.587(1)(c) of the Act. The correspondence directed the Applicant to file and serve submissions providing reasons as to why the Commission should not dismiss the application, evidence or other documentary material the Applicant had to support his reasons. The correspondence provided that if material was not filed by close of business Wednesday 17 May 2017 the application for unfair dismissal remedy would be dismissed.

[7] The Applicant did not file any material with the Commission.

[8] 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.”

[9] The Applicant failed to file materials in accordance with Directions of the Commission and failed to attend the Non-Compliance Hearing to prosecute his application. When asked by the Commission to provide reasons why the application should not be dismissed, the Applicant did not provide a response or contact the Commission.

[10] I have determined that in light of the Applicant’s failure to prosecute the application, the Applicant’s application has no reasonable prospects of success, and pursuant to s.587(1)(c) of the Act, the application is dismissed.

[11] An order giving effect to this decision has been issued separately in PR592781.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR592780>