Mr James Parsons v Barwon Asset Solutions T/A Barwon Water

[2021] FWC 1861

[2021] FWC 1861

FAIR WORK COMMISSION

DECISION

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

Mr James Parsons
v
Barwon Asset Solutions T/A Barwon Water
(U2021/925)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 5 February 2021, Mr James Parsons made an application to the Fair Work Commission for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). On 15 February 2021, Barwon Asset Solutions T/A Barwon Water (the Respondent) filed an F3 – Employer Response to application for an Unfair Dismissal Remedy (Form F3) in which it raised a jurisdictional objection to the application, alleging Mr Parsons was not an employee of the Respondent and that he was instead engaged by a third party labour hire company with whom the Respondent has a commercial contract.

[2] On 15 February 2021, Mr Parsons contacted the Commission by telephone. Mr Parsons made enquiries about matters raised in the Form F3 and advised the Commission that he would seek legal advice before taking further steps in respect of his application.

[3] A conciliation was scheduled for 23 February 2021 however it did not proceed because the Commission could not contact Mr Parsons. The Commission attempted to contact Mr Parsons by telephone four times and sent a follow up email. On the same day the Commission sent a letter to Mr Parsons and the Respondent advising that if either party wanted a second conciliation, they were to email the Commission within two working days. The letter also advised that if no contact was received, the matter would be referred directly for arbitration before a Member of the Commission.

[4] On 3 March 2021 the Commission wrote to Mr Parsons requesting he advise by 4 March 2021 if he sought a second conciliation. On the same day the Commission also attempted to contact Mr Parsons by telephone but was unable to speak with him and left a voice message advising the application would be referred to a Member of the Commission.

[5] On 12 March 2021 the application was allocated to me.

[6] On 15 March 2021 my Chambers wrote to Mr Parsons and the Respondent advising the application would be listed for a telephone Mention at 8:30am on 17 March 2021. A Notice of Listing was issued on the same day, which requested parties contact my Chambers with their phone numbers for the purposes of the Mention.

[7] On 16 March 2021, my Chambers attempted to contact Mr Parsons by telephone four times but all attempts were unsuccessful. A voice message was left advising Mr Parsons of the Mention. A text message was also sent to the phone number provided by Mr Parsons. The text message stated:

‘The Commission would like to remind you that your unfair dismissal application is listed for mention on Wednesday, 17 March 2021 at 8:30am. This will take place by telephone. Please advise us of the phone number you can be contacted on for the mention by emailing [email protected] or call [phone] and ask for [Associate Name]. Please quote matter number U2021/925. DO NOT REPLY BY SMS’.

[8] At 8:33am on 17 March 2021 my Associate attempted to call Mr Parsons for the Mention but was unable to speak with him. A voice message was left advising the purpose of the call and that a second attempt would be made. At 8:36am my Associate again tried to call Mr Parsons but was unable to speak with him.

[9] On 17 March 2021 my Chambers wrote to Mr Parsons concerning the further conduct of his application:

“I refer to the Mention scheduled for this morning at 8:30AM.

A number of attempts have been made to contact you on your nominated phone number regarding the Notice of Listing emailed to you on 15 March 2021.

The Deputy President wishes to discuss with you the further conduct of your application. There will be a number of things to discuss with your application but primarily the identity of your employer.

At this stage I ask that you respond to this email and confirm your intentions regarding your application.

If it is your intention to proceed, another Mention will be arranged and for this purpose we require your best contact phone number.

If you don’t respond to this email by 5pm on Wednesday 24 March 2021, the Deputy President may take the view that you no longer intend to pursue your application and may dismiss the application on that basis.  Please do respond within this time frame.”

[10] No response was received from Mr Parsons. On 24 March 2021 my Chambers again wrote to Mr Parsons:

“I refer to your application for an unfair dismissal remedy.

On 17 March 2021 we emailed you advising you that the Deputy President wishes to discuss with you the further conduct of your application. We have not received a response from you.

You have named Barwon Asset Solutions T/A Barwon Water as your employer in your application. Barwon Water disputes that it is the appropriate employer for your application.

The Commission needs to confirm the correct identity of your employer so that it can progress your application.

If it is your intention to proceed, a further Mention will be arranged. If you do not respond to this email your application may be dismissed.

Please respond by 5pm Tuesday, 30 March 2021 by return email or phonecall to these Chambers.”

[11] Mr Parsons has not contacted the Commission since 15 February 2021.

[12] Sections 587(1) and (3) of the Act provide:

“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.

….

(3) The FWC may dismiss an application:

(a)  on its own initiative; or

(b)  on application.”

[13] Sections 587(1)(a), (b) and (c) do not limit the Commission’s power to dismiss matters for other reasons and s.587(3) of the Act provides that the Commission may dismiss an application on its own initiative.

[14] Having regard to Mr Parsons’ lack of response to repeated contact from the Commission, I can only infer that he no longer wishes to pursue an application. Having regard to the nature of the jurisdictional objection outlined by the Respondent in [1] above, it would appear that the application that has been made by Mr Parsons has no reasonable prospects of success. I am satisfied that it is appropriate in all of the circumstances that I exercise the discretion to dismiss Mr Parsons’ application.

[15] Mr Parsons’ application is therefore dismissed pursuant to s.587 of the Act. An Order to this effect will be issued with this decision.

DEPUTY PRESIDENT

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