Mark Shuttleworth v Life Without Barriers

[2016] FWC 7785

[2016] FWC 7785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Shuttleworth
v
Life Without Barriers
(U2016/7131)

COMMISSIONER BISSETT MELBOURNE, 7 NOVEMBER 2016

Application for relief from unfair dismissal – application dismissed.

[1] On 24 May 2016 Mr Mark Shuttleworth (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal. The Applicant’s employment had been terminated by the Life Without Barriers (the Respondent) on 3 May 2016.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by the close of business, 21 September 2016. The Applicant failed to comply with this direction. My Associate attempted to contact the Applicant regarding his failure to file submissions and materials by this date but was unable to reach him.

[4] On 22 September 2016 an email was sent to the Applicant providing him with an extension for filing his submissions and materials until 30 September 2016. The Applicant was advised that if he failed to file his material the Commission would consider dismissing his application. The Applicant once again failed to file any material in compliance with directions.

[5] On 5 October 2016 an email was sent to the Applicant seeking submissions from him as to why the Commission should not dismiss his application. The Applicant was asked to respond by 5.00pm on 12 October 2016 and advised that if no response was received his application would be dismissed. The Applicant once again failed to respond to the Commission’s request.

[6] 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.

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

COMMISSIONER

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