Mr Hugo Despina v The Trustee for Regal Hire Unit Trust

[2022] FWC 374

[2022] FWC 374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Hugo Despina

v

The Trustee for Regal Hire Unit Trust

(U2021/10005)

COMMISSIONER YILMAZ MELBOURNE, 25 FEBRUARY 2022

Application for an unfair dismissal remedy - matter dismissed under s.587 at the Commission’s initiative.

1. On 10 November 2021, Mr Hugo Despina (the Applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleged he was unfair dismissed by The Trustee for Regal Hire Unit Trust (the Respondent) on 26 October 2021.

1. The Applicant’s Form F2 – Unfair dismissal application (Form F2) named Ms Veronica Roberts as the contact person for the Respondent. Following lodgement of the Form F2, the Commission emailed Ms Roberts on 10 December 2021 requesting completion and filing of a Form F3 Employer Response (Form F3). On the same day, a message was left with the Respondent’s receptionist requesting that Ms Roberts file the Form F3. On 14 December 2021 the Commission made further email and voice mail requests, seeking lodgement of the Form F3. All requests that Ms Roberts complete and file a Form F3 went unanswered.

1. The matter was listed for a conciliation conference before a staff conciliator on 15 December 2021 where the matter did not settle. The matter was subsequently allocated to my chambers and a notice of listing was sent to the parties confirming that a telephone mention and/or directions hearing had been scheduled for 24 January 2022. On 20 January 2022, the Respondent’s receptionist advised my chambers that Ms Roberts was on leave but would be available from 21 January 2022.

1. On 24 January 2022, the day of the mention and/or directions hearing, my chambers attempted to telephone Mr Despina. A voice mail message was left with Mr Despina requesting his urgent attendance. The Respondent advised my chambers that Ms Roberts was now on extended leave and would be available the week after. The mention and/or directions hearing did not proceed.

1. The parties were advised in the afternoon of the 24 January 2022 by email and a notice of listing that the matter had been listed for a non-compliance hearing scheduled for 1 February 2022. The email advised Mr Despina that his application may be dismissed for want of prosecution, should he demonstrate further disengagement with Commission proceedings.

2. In the afternoon of the 24 January 2022, the Respondent emailed my chambers requesting that the non-compliance hearing be relisted as Ms Roberts had planned to attend a business meeting. The Respondent’s request to relist the non-compliance was refused.

1. On the day of the non-compliance hearing, my chambers attempted to contact Mr Despina and a voice mail message was left requesting his attendance. My chambers was advised that Ms Roberts was unavailable and could not attend the hearing.

The Legislation

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.

Consideration and Conclusion

1. At the commencement of section 587 of the Act the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).

1. The Applicant was asked to inform the Commission whether he wished to progress his application or discontinue.

1. I have decided to dismiss the Application for the reason that numerous attempts have been made to contact the Applicant, he was aware that he was to inform the Commission whether he intended to pursue his application.

1. I further note the regrettable behaviour on the part of the Respondent and the demonstrated lack of engagement with Commission proceedings.

1. On this basis the application is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order to that effect will be issued with this decision.

COMMISSIONER

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