Joel Robinson v Winkels Family Trust T/A Pure Peninsula Honey

[2013] FWC 2931

[2013] FWC 2931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Joel Robinson
v
Winkels Family Trust T/A Pure Peninsula Honey
(C2013/3248)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 13 MAY 2013

Application to deal with contraventions involving dismissal - failure to attend - application dismissed.

[1] On 20 February 2013 the Applicant lodged an application to the Fair Work Commission claiming that his employment had been terminated by Winkels Family Trust T/A Pure Peninsula Honey (the Respondent) in contravention of the general protections provisions of the Fair Work Act 2009 (the Act).

[2] The application was listed for a conference on 18 April 2013 and a Notice of Listing sent to both parties on 28 February 2013.

[3] On 5 March 2013 the Respondent contacted the Commission and asked if the matter could be dealt with by way of a telephone conference.

[4] On 6 March 2013 the Respondent sent by email to the Commission and to the Applicant the Employer’s Response to the application.

[5] An amended Notice of Listing was sent to the parties on 12 March 2013 advising that the conference would be conducted by telephone.

[6] On 18 April 2013 Mr Winkels, for the Respondent, was contacted by telephone for the conference. The Applicant was called on his mobile number. That call was diverted to a voicemail message which said:

“I am uncontactable until further notice as I am working in a remote location. I still have access to emails occasionally. Contact me that way.”

[7] On 18 April 2013 my Associate sent a letter, both by mail and email, to the Applicant to ask him if he wished to proceed with his application and to respond by 2 May 2013 or his application would be dismissed. A response from the Applicant has not been received.

[8] Section 587 of the Act provides the Commission with a broad discretion to dismiss an application:

“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] A failure by an applicant to attend a conference convened by the Commission in relation to an application without providing an explanation, combined with a failure to respond to correspondence requesting an indication as to whether an applicant intends to press the application is indicative of a want of prosecution. As a consequence of the Applicant’s non-attendance at the conference and his failure to respond to correspondence I dismiss the application for want of prosecution. An order to this effect will be issued.

DEPUTY PRESIDENT

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