Mr David Carmichael v Brownes Food Operations Pty Ltd

[2021] FWC 3412

[2021] FWC 3412

FAIR WORK COMMISSION

DECISION

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

Mr David Carmichael
v
Brownes Food Operations Pty Ltd
(U2021/3364)

COMMISSIONER RIORDAN SYDNEY, 15 JUNE 2021

Application for an unfair dismissal remedy.

[1] Mr David Carmichael (the Applicant) lodged an unfair dismissal application (the Application) on 20 April 2021 claiming that she was unfairly dismissed by Brownes Food Operations Pty Ltd (the Respondent) on 13 April 2021.

[2] On 30 April 2021, the Respondent filed a Form F3 - Employer Response objecting to the application on the grounds that the Applicant had not been dismissed and that he resigned from his employment.

[3] The matter was listed for Conciliation on 12 May 2021 before a Fair Work Commission (the Commission) staff conciliator but could not proceed as the Applicant failed to attend the conciliation.

[4] On 14 May 2021, the staff conciliator sent correspondence to the Applicant noting that he had failed to attend the conciliation and asking the Applicant to confirm whether he intended to pursue the Application further.

[5] On 14 May 2021, the Applicant sent correspondence advising that he had had surgery and was out of action. The Applicant indicated that he would like to pursue the application in writing as he felt he could not participate in a phone call with the Respondent’s representatives. The staff conciliator wrote back to the Applicant that day noting that conciliation was part of the process for dealing with an unfair dismissal application and that if not successful the matter would proceed to hearing. The Applicant was asked to confirm whether he wanted the application to proceed to the next stage. The Applicant did not respond.

[6] Further correspondence was sent to the Applicant on 17 May 2021 requesting he confirm that he wished the application to proceed. The Applicant did not respond, and the matter was progressed and allocated to me on 21 May 2021.

[7] On 21 May 2021, I wrote to the parties advising the matter had been allocated to me for consideration and set the matter down for Conference by telephone on 28 May 2021. The parties were required to confirm their attendance at the Conference and provide their best contact numbers prior to the Conference. The Applicant did not respond.

[8] The Applicant failed to attend the Conference on 28 May 2021. My Associate attempted to contact the Applicant. When he did not respond, wrote to the Applicant at the time of the Conference asking him to make contact with Chambers. The Applicant did not make contact.

[9] On 28 May 2021, correspondence was sent to the Applicant noting that he had failed to attend the Conference as listed and requiring him to provide submissions as to why his application should not be dismissed under s.587 of the Act. The Applicant was given until 4 June 2021 to respond.

[10] No correspondence or telephone contact has been received from the Applicant to date.

[11] Section 587(1) of the 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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[12] In the circumstances, I have decided to dismiss the application for want of prosecution.

[13] I so Order.

COMMISSIONER

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