Mr Joshua Wilson v Origin Energy T/A Origin Energy

[2016] FWC 4032

[2016] FWC 4032

FAIR WORK COMMISSION

DECISION

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

Mr Joshua Wilson
v
Origin Energy T/A Origin Energy
(U2016/6001)

COMMISSIONER PLATT ADELAIDE, 21 JUNE 2016

Application to deal with unfair dismissal application - dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] On 7 April 2016, Mr Joshua Wilson (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Origin Energy (the Respondent).

[2] The Form F2 Unfair Dismissal Application, submitted by the Transport Workers Union SA/NT (TWU) on behalf of the Applicant stated that the dismissal was unfair because:

● the Applicant was not afforded due process; and
● there was no valid reason for the dismissal.

[3] The Form F3 Employer Response, submitted by the Respondent, stated that the Applicant was dismissed for failing to:

● advise the Respondent of his inability to attend for work on 30 occasions; and
● provide evidence which substantiated the basis for not attending work.

[4] A conciliation was scheduled for 18 May 2016 but was cancelled due to the unavailability of the Applicant.

[5] The matter was then referred to me for arbitration.

[6] A directions conference was listed for 7 June 2016. A notice of listing was sent to the Applicant on 2 June 2016 by email. The Applicant did not attend the conference and his representative, Mr Lewis of the TWU, advised that he had not been able to contact the Applicant. Mr Lewis sought and was granted an adjournment to contact his client and obtain instructions.

[7] On 14 June 2016, Mr Lewis advised that he had not been able to contact the Applicant and filed a Form F54 Notice of Representative Ceasing to Act.

[8] A further directions conference was listed for 20 June 2016. This listing advised the parties that failure to attend this conference could result in the matter being dismissed without further hearing or notice.

[9] The notice of listing for the 20 June 2016 conference was emailed to the Applicant on 14 June 2016 and a copy was sent by registered express post on 16 June 2016.

[10] The Applicant did not attend the Directions conference on 20 June 2016. Ms Mumme of Thomson Geer represented the Respondent.

[11] s.587 of the Act provides:

“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.”

[12] In McLeod v Kulgera Trading Company Pty Ltd 1 Vice President Catanzariti held that s.587 was sufficiently broad to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.

[13] Despite numerous efforts by the Commission and TWU to contact the Applicant, the Applicant has demonstrated an unwillingness to prosecute his case. The principle of a fair go all round applied to both employers and employees. I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources responding to a claim that the Applicant appears to have had no intention of following through.

[14] I adopt the approach taken by Vice President Catanzariti and find that "fairness, justice, equity and good conscience" 2 warrant the dismissal of this application.

ORDER

1. The application lodged by Mr Joshua Wilson pursuant to s.394 of the Act on 7 April 2016 is dismissed pursuant to s.587 of the Act.

COMMISSIONER

Appearances:

L Mummé of Thomson Geer, for the Respondent.

Conference details:

2016

Adelaide (By Telephone)

14, 20 June.

 1  [2014] FWC 2112.

 2 Ibid [10].

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