Mr Ethan Craddock v Mama & Papas Pizzeria

[2014] FWC 464

[2014] FWC 464

FAIR WORK COMMISSION

DECISION

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

Mr Ethan Craddock
v
Mama & Papas Pizzeria
(U2013/10704)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 17 JANUARY 2014

Application for relief from unfair dismissal.

[1] On 20 June 2013 Mr Ethan Craddock (“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 Mama & Papas Pizzeria (“the employer”), in Gympie, on 13 June 2013.

[2] The employer contends that it is a small business employer for purposes of s.23 of the Act and the dismissal was effected in accordance with the Small Business Unfair Dismissal Code. It has filed its completed checklist in this regard.

[3] Directions were issued in relation to the application on 17 September 2013. These Directions set out the issues in contest and the timetable for submissions.

[4] The Directions were sent to the Applicant’s email address and a hard copy was sent to his home address. These were the points of contact earlier used successfully for purposes of contacting the Applicant.

[5] The Applicant was required to provide his materials by 5.00pm on 25 September 2013.

[6] He did not do so.

[7] The Applicant was requested again to provide his materials.

[8] No response was received, and it was necessary to cancel the hearing as set down.

[9] Further correspondence was forwarded to the Applicant on 11 December 2013, seeking clarification of his intentions, and particularly whether he wished to press the application.

[10] No reply was received.

[11] A telephone message was left on his messaging service as well, to the same effect, at a later date.

[12] No reply was received.

[13] Nor did the Applicant respond to another telephone message left on his messaging service a little later.

[14] 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

(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.

[15] 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.

[16] The power to dismiss an application, of course, should only be used cautiously (though interestingly there is a suggestion it should also only be used ‘sparingly’, which is a measure of frequency or economy- [2013] FWC 7080 at 39).

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

[18] 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.

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

[20] 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 mounted a defence of its actions (at a prima facie level at least).

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

SENIOR DEPUTY PRESIDENT

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