Mr Adam Kelly v Alorra Piling (NSW) Pty Ltd
[2024] FWC 3237
•22 NOVEMBER 2024
| [2024] FWC 3237 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Adam Kelly
v
Alorra Piling (NSW) Pty Ltd
(U2024/11310)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 22 NOVEMBER 2024 |
Application for an unfair dismissal remedy
On 23 September 2024, Mr Adam Kelly (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Respondent to the Application is Alorra Piling (NSW) Pty Ltd (Respondent).
Direction [2] of the Directions issued on 11 October 2024 reads:
“[2]By 4.00pm AEDT on Tuesday, 19 November 2024, the Applicant is to either:
a. advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or
b. file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.”
The Applicant did not comply with Direction [2].
On 21 November 2024, at 11:22AM AEDT, the following email (Show Cause Email) was sent to the Applicant:
“Dear Mr Kelly,
Re: U2024/11310 - Mr Adam Kelly v Alorra Piling (NSW) Pty Ltd
I refer to the matter above.
Background
On 11 November 2024, the Fair Work Commission issued the attached Directions in this matter.
Direction [2] of those directions read as follows:
[1] By 4.00pm AEDT on Tuesday, 19 November 2024, the Applicant is to either:
a. advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or
b. file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.
To date, Chambers has not received any materials in compliance with Direction [2].
Further directions regarding show cause
In view of the foregoing, the Deputy President directs as follows:
[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Today, 21 November 2024.
[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter will be dismissed without further notice.
Yours faithfully,
[Associate].”
On 21 November 2024, at 3:38PM AEDT, the following email (Reminder Email) was sent to the Applicant:
“Dear Mr Kelly,
Chambers refers to the email below sent to you yesterday, and reminds you that you need to engage with the contents of the email by 4pm today or your application will be dismissed.
Yours faithfully,
[Associate]”
The Applicant has made no response to the Show Cause Email and/or the Reminder Email.
Legislative Provisions
Section 587 of the Act reads:
“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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:
“[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.”
Consideration
As the Applicant has made no attempt to comply with Direction [2] and/or the Show Cause email and/or the Reminder Email, and has failed to contact the Commission or otherwise explain their non-compliance, I have decided to dismiss their Application.
In dismissing the Applicant’s Application, I find that the Applicant’s non-compliance with Direction [2], the Show Cause Email, and the Reminder Email, to be wholly unexplained, and wholly unsatisfactory.
Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.
DEPUTY PRESIDENT
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