Lance Barton v Barkly Regional Council

[2015] FWC 6084

[2015] FWC 6084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lance Barton
v
Barkly Regional Council
(U2015/8506)

COMMISSIONER BISSETT MELBOURNE, 3 SEPTEMBER 2015

Application for relief from unfair dismissal - dismissal under s.587 at the Commission’s initiative.

[1] Mr Lance Barton has made an application to the Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Barton was employed by Barkly Regional Council (the Council). His employment was terminated on 26 May 2015. On 16 June 105 Mr Barton lodged his application with the Commission.

[2] On 31 July 2015 I issued directions which required Mr Barton to file and serve his submissions and witness material with respect to his application by 4.00pm Wednesday 19 August 2015. The Council was required to file and serve its material by 4.00pm Monday 7 September 2015.

[3] Mr Barton has no email address. The directions were therefore sent to him by express post. On 31 July 2015 my Associate attempted to phone Mr Barton to advise his that directions had been mailed to him. She could not get through to the phone number he had provided on his application.

[4] Mr Barton failed to comply with the directions issued to him.

[5] On 21 August 2015 I wrote to Mr Barton and advised him that he had failed to comply with the directions issued to him. I advised that I would extend the time he had to file his materials to 4.00pm Monday 31 August 2015. In that letter I advised Mr Barton that if he failed to file his materials by the required day I may consider dismissing his application because of that failure.

[6] That correspondence was despatched to Mr Barton by express post. My Associate again attempted to call Mr Barton on an alternative number as advised by the Council. No response was received by chambers to a message left for Mr Barton on that number.

[7] Mr Barton has failed to comply with the directions issued to him.

Legislation

[8] Section 587 of the Act states:

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.

Consideration

[9] Section 587(3) allows the Commission to dismiss an application on the Commission’s own initiative.

[10] Section 587(1) does not operate to limit the grounds on which the Commission may dismiss a matter.

[11] Mr Barton has been provided with two opportunities to comply with direction of the Commission. He has failed to do so on both occasions. Attempts to contact Mr Barton by telephone have been unsuccessful. In this respect I also note that he did not participate in conciliation of his application.

[12] Mr Barton was represented for a period of time after he lodged his application. Correspondence from that representative indicates that Mr Barton lives on remote Aboriginal community. Whilst I have taken his remote location into account it does not explain a failure over a period of five weeks to contact the Commission in any way.

[13] After considering all of the circumstances I have decided that the application should be dismissed pursuant to s.587 of the Act because of a failure of Mr Barton to comply with the directions of the Commission.

[14] The application for unfair dismissal remedy is therefore dismissed. An order to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR571507>