Justin Allsep v Proline Kerbing

[2023] FWC 592

[2023] FWC 592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Justin Allsep
v

Proline Kerbing

(U2022/8444)

COMMISSIONER SCHNEIDER PERTH, 10 MARCH 2023

Application for an unfair dismissal remedy

1. This matter involves an application made by Mr Justin Allsep (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Proline Kerbing (the Respondent).

Background – Non-Compliance

1. The application appears to have been filed outside of the relevant 21-day time period.

1. Correspondence was sent to the parties on 21 February 2023 with specific directions to each party. This was sent to the Applicant by email.

1. The Applicant was directed to provide written materials in relation to the out of time issue by 3 March 2023. Nothing was received from the Applicant by this date.

1. A follow up letter was emailed to the Applicant on 7 March 2023, regarding the failure to comply with the Commission’s direction and directing that the materials be filed and served by 8 March 2023. The letter advised a further failure to comply with the Commission’s direction would be grounds for the application to be dismissed.

1. On 8 March 2023, my associate sent a reminder email to the Applicant. This email reminded the Applicant of the direction to comply and file his materials. This email also reiterated that failure to comply would result in the dismissal of the application.

1. My associate then attempted to contact the Applicant by telephone and left a voicemail requesting the Applicant urgently contact my Chambers regarding the noncompliance.

1. No materials were received by the deadline on 8 March 2023.

1. Subsequently, I instructed my associate to send the Applicant one final notice to comply. This correspondence outlined, in detail, the attempts made to contact the Applicant and highlighted that the file was at risk of closure.

1. The Applicant was again directed to comply with the original directions and to show cause as to why the application should not be dismissed by 10:00AM 10 March 2023.

1. As of the date and time of this Decision, no further communication from the Applicant has been received.

Legislation

1. Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

1. Further, section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Commission must take into account the objects of the relevant Part of the Act.

1. A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

1. The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible, and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

1. Section 587(3) of the Act empowers the Commission to dismiss an application on its own initiative.

1. Section 587(3) of the Act reads 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. 

(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.”

Consideration

1. In this case, the Applicant has failed to comply with the Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

1. The Applicant has been provided two opportunities, and has been reminded by email and telephone, to comply with the directions of the Commission.

1. The Applicant has not attempted to contact my Chambers or comply with the directions.

1. The Applicant, in the circumstances here, has been given a fair go.

1. The Respondent is also entitled to a fair go, including having the claim made against them determined within a reasonable time.

1. The Commission has afforded the Applicant several opportunities to advance his application despite his non-compliance.

1. The Applicant has repeatedly failed to comply with directions of the Commission.

1. The Applicant has never sought or requested an extension from the Commission nor provided reasonable explanation for the continued non-compliance.

Conclusion

1. Consequently, my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of the Commission under section 587(3) of the Act.

1. An Order to this effect will be issued in conjunction with this decision.[1]

COMMISSIONER

[1] [PR760226].

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