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

[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

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

Printed by authority of the Commonwealth Government Printer

Joel Robinson, the applicant, brought an application against the Winkels Family Trust trading as Pure Peninsula Honey, the respondent, before the Fair Work Commission. The dispute centred around the respondent's alleged contravention of dismissal-related provisions under the Fair Work Act 2009, specifically concerning the applicant's termination. The applicant sought to have the contraventions dealt with, including compensation for the unfair dismissal. The Fair Work Commission was tasked with determining whether the respondent had contravened the dismissal provisions and, if so, what remedies should be applied.

The primary legal issues before the Commission were whether the respondent had contravened the dismissal provisions and whether the applicant was entitled to compensation. The Commission had to consider the evidence presented regarding the circumstances of the applicant's dismissal and whether the respondent had a valid reason for terminating the employment. Additionally, the Commission needed to assess the applicant's eligibility for compensation under the Fair Work Act.

The Commission dismissed the application, finding that the respondent had not contravened the dismissal provisions. The evidence demonstrated that the respondent had a valid reason for terminating the applicant's employment and that the dismissal process was handled appropriately. The Commission concluded that the respondent had not unfairly dismissed the applicant, and therefore, the applicant was not entitled to compensation. The dismissal of the application was based on the Commission's determination that the respondent's actions were justified and in accordance with the law. No orders were made in favour of the applicant.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established