Jordan Teio v Millennium Security Specialist Service Pty Ltd

[2020] FWC 75

[2020] FWC 75

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jordan Teio
v
Millennium Security Specialist Service Pty Ltd
(U2019/11708)

COMMISSIONER BISSETT MELBOURNE, 9 JANUARY 2020

Application for an unfair dismissal remedy - dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 18 October 2019 Mr Jordan Teio made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by Millennium Security Specialist Pty Ltd. His employment was terminated on 4 October 2019.

[2] A Notice of Listing was issued to the parties on 22 October 2019 scheduling a telephone conciliation on 19 November 2019.

[3] On 14 November 2019 the Commission left a voicemail message for Mr Teio seeking to confirm his telephone number for the conciliation. A letter was also emailed to Mr Teio the same day requesting confirmation. No response was received.

[4] A Short Message Service (SMS) was sent to the parties on 18 November 2019 reminding them of the upcoming conciliation. Ultimately, the conciliation could not take place on 19 November 2019 as Mr Teio could not be contacted, despite several attempts to telephone him on his nominated telephone number.

[5] As a result, correspondence was sent to Mr Teio’s nominated email address later that day advising as follows:

Conciliation was scheduled for this matter for 9.15am on Tuesday 19 November 2019.  I called the number you listed as your contact number on four occasions between 9.15am and 9.40am but there was no answer.

If either of you (the parties) wants this matter to proceed via a further conciliation, then you need to email me your request within two working days, together with advice of any dates or times for which you would be unavailable…

If I do not hear from you within the next two working days I will refer the matter directly for arbitration before a Member of the Fair Work Commission…

[6] Mr Teio did not respond to the correspondence.

[7] On 22 November 2019 directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 29 – 31 January 2020. The Applicant was directed to file his material by no later than noon on 16 December 2019. Mr Teio did not comply with the directions.

[8] On 16 December 2019 the Commission attempted to telephone Mr Teio on his nominated telephone number regarding his late submissions but was unable to reach him. A voicemail message was left requesting a return call.

[9] Due to Mr Teio’s failure to respond the Commission sent correspondence to Mr Teio’s nominated email address on 17 December 2019 in regard to his overdue material. He was asked to advise the Commission by noon on Wednesday, 18 December 2019 if he intended to file submissions. Mr Teio was also advised that his matter was at risk of being listed for a non-compliance hearing. No response was received from Mr Teio.

[10] On 18 December 2019 the Commission attempted to telephone Mr Teio on his nominated telephone number to discuss his overdue material and to advise him that his unfair dismissal matter was at risk of being listed for a non-compliance hearing. Mr Teio did not answer the call and a voicemail message was left requesting that he call the Commission urgently. Mr Teio did not return the Commission’s call.

[11] As no response was received from Mr Teio the Commission issued a Notice of Listing to the parties scheduling a non-compliance hearing for 20 December 2019.

[12] The non-compliance hearing proceeded before Commissioner McKinnon on 20 December 2019. The parties did not attend.

[13] To date, Mr Teio has not filed any material with the Commission and has not responded to the Commission’s correspondence and telephone messages or made any contact with the Commission regarding his application. He has taken no steps to prosecute his unfair dismissal application despite repeated attempts by the Commission to ascertain his intentions regarding the matter. Mr Teio has failed to attend the conciliation and subsequent non-compliance hearing convened by the Commission regarding his application. Accordingly, I have decided to dismiss Mr Teio’s application pursuant to s.587 of the FW Act.

[14] Section 587 of the FW Act provides that:

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), 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.

[15] As Mr Teio has failed to prosecute his application I find that, pursuant to s.587 of the FW Act, it has no reasonable prospects of success. The application is therefore dismissed. An order 1 to this effect will be issued in with this decision.

COMMISSIONER

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