Michael Harrison v The Trustee for O'Reilly Family Trust T/A Warburton Bakery

[2017] FWC 2745

[2017] FWC 2745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Harrison
v
The Trustee for O’Reilly Family Trust T/A Warburton Bakery
(U2017/1977)

DEPUTY PRESIDENT CLANCY MELBOURNE, 18 MAY 2017

Application for an unfair dismissal remedy.

[1] On 23 February 2017, Mr Michael Harrison made an application (the Application) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Harrison was notified of his dismissal by The Trustee for O’Reilly Family Trust T/A Warburton Bakery (Warburton Bakery) on 16 February 2017.

[2] The matter was initially listed for conciliation on 30 March 2017, however it did not proceed due to Warburton Bakery advising the Fair Work Commission (the Commission) that it did not wish to participate. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Harrison was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon on Monday 24 April 2017. Mr Harrison did not file any material by that time.

[4] On 1 May 2017, the Commission attempted to telephone Mr Harrison’s then representative Mr Kozijevic regarding Mr Harrison’s outstanding material and a message was left with his receptionist to return the call. Later on the same day, Mr Kozijevic filed a Form F54 – Notice of representative ceasing to act.

[5] Between 1 and 4 May 2017, the Commission made three attempts to telephone Mr Harrison regarding his outstanding material and voicemail messages were left requesting he return the Commission’s call. In the last call, Mr Harrison was advised that if he did not contact the Commission urgently, the matter would be listed for a non compliance hearing.

[6] As Mr Harrison did not comply with the directions, the matter was listed for a non compliance hearing before Deputy President Gooley on 5 May 2017.

[7] Mr Harrison and Warburton Bakery both did not attend the non compliance hearing on 5 May 2017. Consequently, the Commission sent correspondence to parties noting Warburton Bakery’s eligibility to make an application to dismiss pursuant to s.399A of the Act and advising Mr Harrison that if he did not contact the Commission by Monday 15 May 2017, his matter may be dismissed on the basis that it has no reasonable prospects of success.

[8] On Friday 12 May 2017, a further two attempts to contact Mr Harrison by telephone were made and voicemail messages could not be left.

[9] Mr Harrison did not respond to the correspondence or file any material with the Commission.

[10] Section 587(1) of the Act provides as follows:

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] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[12] The power to dismiss an application pursuant to s.587 of the Act is discretionary. Mr Harrison has failed to respond to numerous attempts by the Commission to contact him. He has shown no willingness to prosecute his case and provided no explanation for his failures to comply with directions or attend a hearing held by the Commission. In these circumstances, I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the Application on the basis that it has no reasonable prospects of success. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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