Michael Danieli v ALH Group T/A Hendon Hotel/Findon Hotel

[2017] FWC 2597

[2017] FWC 2597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michael Danieli
v
ALH Group T/A Hendon Hotel/Findon Hotel
(U2017/2359)

COMMISSIONER HAMPTON ADELAIDE, 12 MAY 2017

Application for an unfair dismissal remedy.

Application for relief from unfair dismissal –– failure of applicant to participate in directions conference –– no explanation or contact from applicant –– application taken to be abandoned – application not valid due to absence of extension of time to file –– application dismissed.

[1] On 6 March 2017, Michael Danieli (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the FW Act) for an alleged unfair dismissal by his former employer ALH Group T/A Hendon Hotel/Findon Hotel. The application was filed outside of the 21 day standard time limit for the lodgement of applications of this kind 1 and an application for an extension of time was indicted within the initiating document.

[2] The matter was listed for conciliation, by telephone on 6 April 2017 before a Fair Work Commission Conciliator. The matter did not resolve and was subsequently referred to this arm of the Commission for hearing and determination.

[3] A directions conference was listed for 27 April 2017 and notice of this conference was provided by email to both parties and their representatives.

[4] On 26 April 2017, United Voice filed a form F54 Notice of representative ceasing to act for the Applicant.

[5] Upon receipt of the Form F54, my Associate attempted to make contact with the Applicant as a courtesy to remind him that the matter remained listed before the Commission; however, the applicant could not be reached.

[6] There was no participation by the Applicant, or by anyone on his behalf at this conference. Mr Webb of the Australian Hotels Association participated on behalf of the Respondent.

[7] Following the telephone conference, the Commission wrote to the Applicant seeking confirmation as to whether he intended to proceed with his application, and if so, to provide an explanation for his non participation in the conference. Further, the Applicant was advised that if he did not contact the Commission by close of business, Thursday 4 May 2017, his application would be taken to be abandoned and would be dismissed without further notice or hearing. In the circumstances, the correspondence was sent by email and in hard copy to the Applicant’s postal address on 27 April 2017.

[8] There has been no contact made with the Commission by Mr Danieli, or anyone on his behalf, including in the period of time that has lapsed since the due date for some contact to be made.

[9] Mr Danieli has been provided with a reasonable opportunity to advance his case and has not done so in the context of a warning that the Commission would dismiss his application if he did not take some steps to do so. He has, in effect, abandoned this application.

[10] 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.”

[11] There are no reasonable prospects that an abandoned application can succeed. The application also requires an extension of time to permit it to be lodged when it was and no extension has been granted. The unfair dismissal application is therefore not a valid application and has not been made in accordance with the FW Act.

[12] In all of the circumstances I consider that it is appropriate to exercise my discretion to dismiss the unfair dismissal application.

[13] Accordingly, Mr Danieli’s unfair dismissal application is to be dismissed. An order 2 to that end is being issued in conjunction with this decision.

COMMISSIONER

 1 S.394(2) of the FW Act.

 2   PR592797.

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<Price code A, PR592843>