Lee Kenny v Radio Larrakia Aboriginal Corporation T/A Larrakia Radio 94.5fm

[2017] FWC 4594

[2017] FWC 4594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lee Kenny

v

Radio Larrakia Aboriginal Corporation T/A Larrakia Radio 94.5FM

(U2017/7230)

Commissioner Bissett MELBOURNE, 6 SEPTEMBER 2017

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

Background

1. On 5 July 2017 Mr Lee Kenny made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Kenny was employed by Radio Larrakia Aboriginal Corporation. His employment was terminated on 16 June 2017.

1. The matter was the subject of conciliation where it was not resolved. Consequently directions were issued which required Mr Kenny to file and serve his submissions, documents and witness evidence with respect to his application by noon Monday 21 August 2017. Mr Kenny failed to comply with this direction.

1. The Commission wrote to Mr Kenny on 22 August 2017 regarding his failure to file submissions by the required date. That correspondence extended the time within which Mr Kenny was required to file his submissions to noon Thursday 24 August 2017. Mr Kenny failed to respond to the Commission’s correspondence and failed to file submissions by the extension date.

1. On 28 August 2017 further correspondence was sent to Mr Kenny requiring him to advise the Commission by 4.00pm Friday 1 September 2017 whether he wished to proceed with his application and that, should he fail to contact the Commission, his application may be dismissed. Mr Kenny once again failed to respond to the Commissions’ correspondence.

1. After the attempts to contact Mr Kenny and the lack of response from him, I am satisfied that Mr Kenny does not intend to pursue his s.394 application.

Legislation

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

1. Section 587(3) of the FW Act allows the Commission to dismiss an application on the Commission’s own initiative.

1. Section 587(1) of the FW Act does not operate to limit the grounds on which the Commission may dismiss a matter.

1. Mr Kenny has been provided with two opportunities to respond to directions of the Commission. He has failed to do so on each of these occasions. Attempts to contact Mr Kenny via email have been unsuccessful.

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

1. The application for unfair dismissal remedy is therefore dismissed. An order[1] to this effect will be issued with this decision

COMMISSIONER

[1] PR595833

Printed by authority of the Commonwealth Government Printer

<Price code A, PR595828>