Mr Daniel Brannan v Intex Holdings T/A Adelaide MRI

[2017] FWC 6257

[2017] FWC 6257

FAIR WORK COMMISSION

DECISION

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

Mr Daniel Brannan
v
Intex Holdings T/A Adelaide MRI
(U2017/9977)

COMMISSIONER HAMPTON ADELAIDE, 27 NOVEMBER 2017

Application for an unfair dismissal remedy – failure by applicant to fully engage in process – no attendance at directions conference – no response to Commission requirement to advise his intentions in the context that a failure to do so would constitute a discontinuance – matter now taken to be discontinued and file closed.

[1] On 13 September 2017, Daniel Brannan made an application for a remedy in relation to an alleged unfair dismissal under s.394 of the Fair Work Act 2009. His employment was apparently terminated by Intex Holdings T/A Adelaide MRI on 25 August 2017.

[2] The matter was listed for a telephone directions conference before the Commission as presently constituted on 20 November 2017 at which time there was no participation by the Applicant. Attempts were made by my Associate to contact him via telephone and a voice mail was duly left asking him to contact the Commission to discuss the matter. The voice mail was followed by an email advising Mr Brannan that unless he contacted the Commission by Wednesday 22 November 2017 to advise his intentions with the application, which was to be accompanied by a statement of his reasons for his non-attendance at the conference, the application would be taken to be abandoned and the file closed without further notice or hearing.

[3] On 22 November 2017, Mr Brannan emailed my Associate to advise the he had obtained legal advice and was advised that although he was “unfairly dismissed” he should have made a General Protections (adverse action) application instead of an Unfair Dismissal claim and was now seeking advice from the Commission as to whether he could now “alter the claim” accordingly.

[4] My Associate responded via email the following morning and indicated to Mr Brannan that the Commission is unable to give legal advice on such matters and he should instead take or follow his own legal advice on the matter. Mr Brannan was also informed that he should be aware of a Full Bench decision 1 which appeared to indicate that it was not possible to convert an application of the present nature into a General Protections matter, but that this should be raised with his legal advisor and it is that advice that should be relied upon.

[5] Mr Brannan was again reminded in that email that he needed to confirm his intentions to proceed with the unfair dismissal matter, and to address his non-attendance at the earlier directions conference. He was directed to do so by no later than 4.00pm, Friday 24 November 2017 and clearly advised that if he did not do so, this matter would be taken as being discontinued and the file closed by the Commission.

[6] No further response has been received from Mr Brannan or anyone acting on his behalf. Accordingly, the Commission considers this matter as being discontinued and the file will be closed.

COMMISSIONER

 1   Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660.

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