Luke Seabourne v Complete Workforce Solutions T/A Labour Hire

[2020] FWC 4076

[2020] FWC 4076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Seabourne
v
Complete Workforce Solutions T/A Labour Hire
(U2020/4646)

COMMISSIONER BISSETT MELBOURNE, 4 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 14 April 2020 Mr Luke Seabourne (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant advised his employment with Complete Workforce Solutions T/A Labour Hire (the Respondent) was terminated.

[2] After an unsuccessful conciliation conference on 22 May 2020 the matter was listed for Jurisdiction (No Dismissal) and Arbitration Conference/Hearing on 27 to 29 July 2020.

[3] On 16 June 2020 the Respondent contacted the Commission by telephone, enquiring as to how the Applicant could discontinue the application. The Respondent was informed that the Applicant would need to complete and submit a Notice of Discontinuance. The Respondent requested that a copy of the form be emailed to its nominated email address.

[4] Later that day, the Commission provided by email a blank Notice of Discontinuance to the Applicant and the Respondent.

[5] Later that day, the Respondent contacted the Commission by email providing a Notice of Discontinuance signed by the Applicant. The Commission then attempted to contact the Applicant by telephone to confirm that the Notice of Discontinuance had been signed by him. There was no answer, and a voice message was left requesting the Applicant contact the Commission. The applicant was also contacted on his nominated email address, requesting the Applicant to confirm whether the Notice of Discontinuance was signed by themselves and if he wished to discontinue the matter. No response was received.

[6] On 29 June 2020 the Commission attempted to contact the Applicant by telephone to enquire about the Notice of Discontinuance. There was no answer.

[7] On 10 July 2020 the Commission sent a letter to the Applicant on his nominated email address. The letter advised that some time ago the Commission received a Notice of Discontinuance apparently signed by the Applicant but lodged by the Respondent. The letter noted several attempts had been made by the Commission to confirm the Notice of Discontinuance was in fact signed by the Applicant and it was the Applicant’s intention to discontinue the matter. The letter also noted that the Applicant had failed to file submissions on his unfair dismissal application as due on 29 June 2020. The letter further advised that I was considering whether to dismiss the application under s. 587 of the FW Act due to the Applicant’s failure to prosecute his matter. The Applicant was informed that if the Commission did not hear back from him within 14 days, it would be likely that his matter would be dismissed.

[8] To date, the Applicant has not filed a Notice of Discontinuance or submissions on his unfair dismissal application with the Commission. Additionally, there has been no correspondence providing an update on the status of this matter. In these circumstances, I have decided that attempts to arrange a Mention of the application would be futile.

[9] Section 587(1) of the FW Act provides:

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.

[10] Section 587(1) does not limit the circumstances within which the Commission may dismiss an application. This much is clear from the words “Without limiting when the FWC may dismiss an application…”. In this case I am satisfied that the Applicant has failed to respond to enquiries from the Commission and has failed to take any steps to prosecute his application over a period of 7 weeks. I consider, in these circumstances, that the application should be dismissed. Had it been that the Applicant intended to continue his application he has had ample opportunity to advise the Commission of this. He has not done so.

[11] For these reasons I am satisfied that the application should be dismissed pursuant to s.587 of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

 1   PR721525.

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