Mr Bradley Bacik v Channell Pty Ltd - [2014] FWC 3100

[2014] FWC 3100

FAIR WORK COMMISSION

DECISION

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

Mr Bradley Bacik
v
Channell Pty Ltd
(U2013/17134)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 13 MAY 2014

Application for relief from unfair dismissal - application dismissed.

[1] On 8 December 2013 Mr Bradley Bacik (“the Applicant”) made an application for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (“the Act”). His employment was terminated by Channell Pty Ltd (“the employer”) on 15 November 2013.

[2] The employer contends that it is a small business employer for purposes of s.23 of the Act and the Applicant was not employed for the minimum employment period of one year.

[3] Directions were issued in relation to the jurisdictional objection on 19 February 2014. These directions set out the issues in contest and the timetable for the filing of relevant evidence. Both parties were to file relevant evidence by 5 March 2014, with the parties to be given a right of reply subsequently. The directions noted that the matter would be listed for hearing in the event of contested evidence.

[4] The Directions were sent to the Applicant’s email address. This was the point of contact earlier used successfully for purposes of contacting the Applicant.

[5] The Respondent provided material including a copy of the employment contract, copy of the termination letter and relevant payroll records, on 24 February 2014 (which was forwarded to the Applicant by the Respondent on 26 February 2014).

[6] On 5 March 2014, the Applicant (by email) requested an extension to file his material, due to difficulties in contacting his legal advisor. I note that no legal representative had been notified to the Commission.

[7] On 5 March, the Applicant was advised that he must file his material by 5pm on 10 March 2014.

[8] Later that same day, the Applicant (by email) responded:

So under that act you refer I assume.they have found a loophole of some sort ?

[...] (sic)

[9] On 6 March 2014, the Applicant was advised as follows:

In accordance with the Fair Work Act 2009, the Commission must consider any jurisdictional objections to an application prior to considering the substantive issue (whether the dismissal was harsh, unjust or unreasonable).

In this case, the employer has raised an objection that you were not employed for the minimum employment period prescribed by the Act, noting its contention that the employer is a small business employer (within the meaning of the Act). The relevant sections from the Act are extracted below.

In light of the above, the Commission must determine this issue in the first instance. Upon receipt of your material (noting the employer has already filed its material) the parties may be given the opportunity to provide information in reply. It is Senior Deputy President Richards’ intention, subject to your views to the contrary, that the matter will be determined on the basis of the written materials, however if there is any contested evidence, His Honour may convene a hearing to resolve the evidence.

You will find further information and guides on the Fair Work Commission website –

[...]

[10] No material was received from the Applicant by 5pm on 10 March 2014.

[11] On 18 March 2014, I sent a further email to the Applicant, noting that no material had been received. The Applicant was given until 24 March 2014 to provide any relevant material to the Commission, and advised that if no material was received, the application may be dismissed under s.587 of the Act.

[12] No material has been received from the Applicant to date.

[13] Section 587 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

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.

[14] In the current circumstances the Applicant has been given a reasonable opportunity to present his case and he has not done so. I cannot by some action compel the Applicant to take advantage of the opportunity to present his case. The Applicant merely has determined that he does not seek to define his case or prosecute the action he has initiated.

[15] The power to dismiss an application, of course, should only be used cautiously.

[16] Section 587 of the Act does not limit the grounds on which, I can under my own motion, dismiss an application.

[17] In this instance, the Applicant has failed to comply with directions and provided no indication that he wishes to avail himself of an opportunity to present his case in relation to the application he has agitated, initially.

[18] In my view, s.587 of the Act affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis.

[19] In any event, an application which is not pressed and for which there are no grounds established in the manner as required is an application that has no reasonable prospects of success. This is especially so in circumstances where the Respondent employer itself has provided evidence in support of its jurisdictional objection (at a prima facie level at least).

[20] For these reasons I dismiss the application made by the Applicant under s.394 of the Act.

SENIOR DEPUTY PRESIDENT

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