Mr Mario Lopez Aragon v Aegis Safety Pty Ltd T/A Techinspect

[2013] FWC 5993

[2013] FWC 5993

The attached document replaces the document previously issued with the above code on 30 August 2013.

The words “Printed by authority of the Commonwealth Government Printer” have been inserted at the conclusion of the decision.

Nate Burke

Associate to Commissioner Spencer

Dated 30 August 2013

[2013] FWC 5993

FAIR WORK COMMISSION

DECISION

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

Mr Mario Lopez Aragon
v
Aegis Safety Pty Ltd T/A Techinspect
(U2013/6116)

COMMISSIONER SPENCER BRISBANE, 30 AUGUST 2013

Application for unfair dismissal remedy - multiple jurisdictional objections - non-compliance with directions - s.399A application to dismiss.

[1] This decision relates to an application, filed on 3 February 2013, by Mr Mario Lopez Aragon (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging that the termination of his employment from Aegis Safety Pty Ltd T/A Techinspect (the Respondent) was harsh, unjust or unreasonable (the application). The originating application alleges that the date the dismissal took effect was 11 January 2013 by way of “forced resignation with immediate effect” 1.

[2] The Respondent filed a Form F3 Employer’s Response to Application for Unfair Dismissal Remedy in response to the application. In response to item 4 “[D]o you have any jurisdictional or other objection(s) to the application?” the Respondent raised five separate matters. Of relevance to this decision are the Respondent’s objections that the application was filed out of time and further that the Applicant was not dismissed but rather resigned his employment.

[3] The application was listed for conciliation before a Fair Work Conciliator but the matter was not resolved.

[4] The Respondent subsequently filed a Form F4 Objection to Application for Unfair Dismissal Remedy. Of the five matters originally raised by the Respondent in the Form F3 the objections raised by the Form F4 were clarified to three objections, being that the application was filed out of time, that the Applicant was not dismissed and that the application has no reasonable prospects of success. A further amended Form F4 was filed by the Respondent later in proceedings which will be referred to below.

[5] While all of the material and correspondence filed in relation to this matter have not been referred to all of such have been considered.

Background

[6] The application came before the Commission, as presently constituted, for determination of the jurisdictional issues raised by the Respondent. The matter was listed for Conciliation/Mention before the Commission. The matter was not able to be resolved.

[7] During the conference the Applicant maintained that he had documentary evidence that he wished to file in support of his application. The parties agreed to a course of action where the Applicant was directed to file the material he wished to provide in support of his application and specifically in relation to the question of an extension of time, and the objection as to whether he was dismissed.

[8] At this point it is worth noting that at the time of filing his application, on 3 February 2013, the Applicant included a covering letter which stated, relevantly:

“This is to advise:

1) I have written communication between Aegis Safety Pty Ltd and myself to support my application.

2) I am in the process of gathering such information to submit to the Commission.” 2

[9] No “written communication” or further “information” as referred to in this letter has been filed by the Applicant since the original application was filed some 6 months ago.

[10] At the time of the conference before the Commission, the Applicant raised some difficulties that he would have in filing material, on account of his current financial situation and his access to printing or copying facilities. The Commission recognised these difficulties as genuine and offered to the Applicant, the assistance of the FWC Industrial Registry (the Registry) to make copies of the documents that he wished to file. It was also offered to the Applicant that once he had collated his submissions and material the Commission would undertake to serve the documents upon the Respondent.

[11] In or about the middle of June the Applicant attended at the Registry in Brisbane. The Associate attended the counter to assist the Applicant. The Applicant attended with a large volume of material and audio recordings. These materials were not collated into any order with the Applicant acknowledging to the Associate that he needed to spend further time to review all of his material ready for filing and service. It is noted that this took place approximately 5 months after termination and 4 months since the filing of the application at which time the Applicant advised the Commission, by way of cover letter, that he was “in the process” of gathering his information and that he had written communication to support his application.

[12] Following this attendance the Commission issued formal written Directions to the Applicant to file his material in relation to an extension of time and the issue of resignation or dismissal. Those Directions provided the Applicant with a period of greater than 4 weeks within which to compile his material and file the documents. Again administrative assistance was offered. It is noted that the Directions required the Applicant to file his material by no later than 4pm on Friday, 28 July 2013. This is a typographical error as Friday was actually the 26th of July. This will be discussed further below.

[13] By way of correspondence dated 24 July 2013 the Respondent sought to clarify the intention of the date. This correspondence was forwarded to the Applicant on 24 July 2013 with a response that the Directions intended for the material to be filed by Friday, 26 July 2013. It is noted that the Applicant did not seek to clarify the date by which he was directed to file material and indeed did not contact Chambers at all until 31 July 2013.

[14] By way of correspondence, dated 31 July 2013, the Applicant confirmed that he received the correspondence of the Commission of 24 July 2013. The Applicant restated the difficulties that he perceived he had in presenting his case due to his financial circumstances, lack of legal knowledge and representation and lack of resources. The Applicant did not seek an extension of time, nor seek to explain his non-compliance, beyond these issues. In the covering email of 31 July 2013 the Applicant advised “I intend to contact the Commission before this week ends”. The Applicant did not contact the Commission as advised. The Applicant also changed his postal address at this time, but confirmed that his email address was still valid.

[15] On 6 August 2013 the Commission caused correspondence to be sent to the Applicant in relation to his non-compliance and his lack of contact with the Commission. This correspondence referred the Applicant to the previous correspondence and Directions and provided the Applicant with a further period of one week within which to file the material he intended to file.

[16] This correspondence further referred to the parties to s.399A of the Act (set out below). The correspondence contained the following statement:

“If no material is received by this time, and no extension is granted, the Commission will consider dismissing the application for failure to comply with a direction of the Commission relating to an application or for want of prosecution.” 3

[17] The correspondence also renewed the offer of the Commission to the Applicant for administrative assistance from the Registry in relation to the photocopying and scanning of his materials. The correspondence advised the Applicant that he should contact Chambers when he was ready for assistance with this, so that arrangements could be made with the Registry. The Applicant did not contact Chambers for assistance.

[18] The relevant time for compliance with that further correspondence was by no later than close of business on Tuesday, 13 August 2013.

[19] Shortly after the correspondence of 6 August 2013 was sent to the parties the Respondent filed, and served, a further amended Form F4 jurisdictional objection. This further Form F4 added a new application, pursuant to s.399A of the Act, for the Commission to dismiss the application for failure to comply with a Direction of the Commission relating to an application.

[20] The Commission responded to the parties that in light of the Commission’s previous correspondence to the Applicant of 6 April 2013 the Commission would revisit the Respondent’s further application to dismiss pursuant to s.399A of the Act after the further time for compliance set by the Commission if required.

[21] At 3:44pm on Tuesday, 13 August 2013, the further date for the Applicant to file his material, correspondence was received by email acknowledging the email of the Commission dated 6 August 2013. The Applicant referred to an “urgent private matter” that had attended to that morning. No further details were provided of this private matter. And further the Applicant referred to a condition that his wife had been suffering for “the last few days”. The Applicant also referred to his “need to go back to finalise my job hunting matter”.

[22] The Applicant also advised that “I intend to respond to your last correspondence (including the below email) and submit an objection to the written direction issued by the Commission not only for quoting an invalid date (which has been manipulated by the respondent to their advantage) but also for not being consistent with discussions held on 31 May 2013 and subsequently in mid June 2013”. The correspondence did not seek an extension of time or attempt to explain (other than those matters discussed in [21] above) his non-compliance. This is discussed further below.

[23] Further correspondence was sent from Chambers to the Applicant on 15 August 2013. This correspondence referred to the previous Directions and correspondence and the fact that the Applicant was to file material by close of business on Tuesday 13 August 2013 but that he had not done so. The correspondence of 15 August 2013 noted that no extension of time had been sought by the correspondence of 13 August 2013 and as such no extension of time had been granted.

[24] The correspondence of 15 August 2013 referred to the correspondence of 6 August 2013 and the reference in that correspondence to s.399A of the Act and the statement in the correspondence extracted at [17] above. The correspondence also referred the Applicant to the further amended Form F4 filed by the Applicant on 6 August 2013. The correspondence closed with the following statement:

“In considering whether to dismiss your application for these reasons the Commission will provide you with a final opportunity to provide any reasons as to why you have not filed material in accordance with the Directions of 17 June 2013 and the correspondence of 6 August 2013. Any such response must be filed by no later than close of business on Thursday, 22 August 2013. If no response is filed the Commission will consider you do not wish to file any material and will consider dismissing the application on the basis of the material currently before the Commission.”

[25] The Applicant did respond at 4:11pm on 22 August 2013. The Applicant acknowledged receipt of the correspondence of 15 August 2013 and advised that he had limited access to computer and internet facilities.

[26] The Applicant submitted that his personal circumstances did not allow him to respond to the correspondence of 15 August 2013 but confirmed that he did still intend to file material in the application. The Applicant complained that “despite the fact I have expressed my concerns about how the commission is dealing with this matter I still have not received clear information on the procedures to follow and information on my rights on this matter before the commission”.

[27] The Applicant further submitted that he had not sought an extension of time because, alleges, that the Commission has not given information on such processes.

[28] He closed the correspondence stating “I will contact the Commission as soon as my personal circumstances allow me to do it”.

[29] The Applicant has not detailed at any time what particular difficulties he had with Commission procedures.

Legislation

[30] The parties were referred to s.399A of the Act which provides:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[31] The Commission also has general powers to dismiss application pursuant to s.587 of the Act which 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.

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

[32] The Respondent has applied for the Commission to dismiss the Applicant’s application pursuant to s.399A of the Act.

[33] The Respondent, in making this application to dismiss, referred briefly to the history of the matter discussed above. The Respondent submitted that the Applicant has been awarded a sufficient opportunity to produce the material and evidence of his claim.

[34] The Commission agrees with the submission. The Applicant has been provided a significant amount of latitude in presenting his case. The administrative assistance of the Registry has been offered to the Applicant, to undertake administrative photocopying and scanning.

[35] Since the time of his termination (whether by dismissal or resignation) the Applicant has had a period of greater than 7 months within which to prepare and present his case. The Applicant has been on notice since the filing and service of the Form F3 Employer’s Response on 15 February 2013, that the Respondent intended to rely upon a number of jurisdictional objections.

[36] The Applicant has continually advised the Commission that he was in the process of preparing his case. The Applicant advised the Commission at the time of filing the application, on 3 February 2013, that he was “in the process” of gathering his information. He also acknowledged by this correspondence, that the application was “submitted late”. The Applicant also acknowledged that he was aware that his application was due by 1 February 2013. He provided brief reasons for this delay referring to his inability to scan his completed application and his financial inability to pay the filing fee.

[37] While it is the case that no material or submissions have been filed by the Applicant in relation to his extension of time and the reason for the delay it is noted, however not given much weight in relation to this decision to dismiss pursuant to s.399A of the Act, that the Applicant could, and has on previous occasions, attended at the Commission to file a hardcopy of his application, and further that the Act and regulations provide for an Applicant to apply for the filing fee to be waived. Another matter which the Applicant could have attended to prior to filing or at the time of filing his application in person.

[38] The relevant part of s.399A of the Act is s.399A(1)(b) - failure to comply with a Direction or Order of the Commission in relation to an application. The Applicant has been directed on 3 separate occasions to file the material that he wished to file in relation to his application and the jurisdictional objections. The Applicant has also been offered a further subsequent opportunity to provide submissions or reasons for his failure to comply with those Directions.

[39] While the Commission acknowledges the hardships that the Applicant has expressed they are not, unfortunately, exceptional. Most Applicants who are appearing before the Commission in relation to an application concerning termination of employment will have difficulties with their financial responsibilities, accordingly the Commission endeavours to ensure the proceedings progress efficiently. Most Applicants will also not be trained lawyers or have industrial relations expertise. The obligation of all Applicants however is to prosecute their case in an efficient manner. In doing so all parties must comply with Directions set by the Commission for this purpose. Alternatively they need to clearly establish impediments to filing materials in order that timely extension can potentially be set. The recent inclusion of s.399A of the Act clarifies this position that the conduct of parties in running their case before the Commission is important and parties are accountable for the way in which they run their case or respond to an application.

[40] The Applicant has consistently been provided with an opportunity to prevent his case, something which he has, on the material before the Commission, been in the process of doing since at least 3 February 2013. A period of over 6 months is an excessive and unreasonable amount of time, in the absence of any reasonable explanation or countervailing circumstances, to pursue or defend one’s case. The Commission is under an obligation to exercise its functions and powers in a manner that is quick, informal and avoids unnecessary technicalities. 4

[41] While the Applicant has complained that his lack of knowledge of the processes and procedures of the Commission has caused him some difficulty, the Commission has extended administrative assistance to the Applicant in preparing his material for filing and service. The Applicant has not been directed to do anything beyond what an Applicant would ordinarily be instructed to do. Indeed the Commission provided the opportunity for the Applicant to file his material subsequent to the conference before the Commission and advised that the Commission may reconvene a conference in the matter following receipt of this material. The Applicant was also directed to relevant sections of the Act and referred to legal advice including community legal centres.

[42] The Applicant has not, following the issuing of Directions on 17 June 2013, sought clarification or assistance from the Commission in any way. He has not provided sufficient reasons, or even a reason, as an explanation for his inability to comply with the generous timeframes provided to him. He has not sought an extension of time in any of his correspondence following the Directions of 17 June 2013.

[43] The Respondent has filed material in support of their jurisdictional objections (primarily the question of resignation/dismissal). This material has detailed the basis on which the Respondent relies, upon the objection and further the Respondent has, despite not having been formally directed to do so, filed material in support of its objections including documentary evidence of two witness statements. The Applicant has not in anyway, since the issuing of Direction of 17 June 2013, sought to respond to these matters.

[44] The Commission will now specifically consider each of the separate Directions.

Directions following Conference of 30 May 2013

[45] During the Conference of 30 May 2013 the Commission provided the Applicant with an opportunity to file the further material that he was seeking to rely upon in his application. This would provide the Commission and the Respondent with an understanding of those matters that the Applicant relies upon in support of his case and in defence of the jurisdictional objections. Once the material was filed the Commission undertook to consider that material and either list the matter for a further conference or issue further Directions as required. The Respondent agreed to this course of action.

[46] These Directions were not formally issued to the parties but were nevertheless a direction expressed to the Applicant to present his case in the application and the objections.

[47] It is acknowledged that the Applicant did attend at the Registry in mid June 2013. However the Applicant was not, at this time, prepared to submit his materials as they were not prepared or collated so as to be of assistance to the Commission. It was expressed to the Applicant at this time that the Commission could not assist him in preparing his substantive case or response to the jurisdictional objections but that the Commission had offered administrative assistance only. It is noted that at this time the Applicant advised the Associate that he had recordings of discussions that he may wish to rely upon. He was advised however that the Commission could not go to the expense of copying or transcribing these recordings.

[48] Following this attendance the Commission decided to issue formal Directions to assist the Applicant in the preparation of his response to the jurisdictional objections.

[49] Given the circumstances surrounding this initial Direction the Commission has not placed any weight on the non-compliance or otherwise of the Applicant in relation to this Direction.

Directions of 17 June 2013

[50] Following the attendance of the Applicant at the Registry formal written Directions were issued by the Commission to both parties.

[51] It is acknowledged that a typographical error referred to an incorrect date for the filing of material. However the Applicant did not seek clarification, at any stage, of the intention of the true date for compliance.

[52] In fact it was the Respondent who sought clarification from the Commission as to the typographical error. The Commission responded clarifying the intended date of compliance pursuant to the Directions.

[53] It is noted that the Applicant has, presumably although he has not specifically outlined his reliance on this typographical error, relied on this incorrect date. However the date was clarified prior to the time for compliance by the response of the Commission of 24 July 2013. Regardless, the Applicant did not comply with either possible date being Friday, 26 July or Sunday, 28 July 2013. On any reading of the Directions this was still a significant period provided to the Applicant to file his materials. He did not do so and only corresponded with the Commission after the date for compliance was required.

[54] The Commission is satisfied that the Applicant has failed to comply with the Directions of 17 June 2013.

[55] In relation to whether or not the failure to comply was unreasonable the Applicant has been provided with an opportunity to provide reasons for his failure to comply and or has had the opportunity to seek an extension of time but he has chosen not to do so.

[56] In response to the Directions of 17 June 2013 and the correspondence of 24 July 2013 it is necessary to refer to the Applicant’s correspondence of 31 July 2013, after the date for compliance with the Directions of 17 June 2013 was required.

[57] The Applicant referred to general “concerns” about some of the “procedures and effects” of these procedures of the Fair Work Commission and Fair Work Ombudsman. It is unclear in what respect the processes of the Fair Work Ombudsman are relevant to this matter before the Commission. The Applicant has however not sought to particularise those concerns or the procedures with which the Applicant was allegedly concerned. It is noted that at no point after the issuing of the Directions of 17 June 2013 did the Applicant correspond or contact Chambers to discuss any concerns or seek any clarification.

[58] The Applicant, in his correspondence of 31 July 2013, also referred to his being unemployed, inability to afford legal representation and his inability to access resources to submit his materials. In relation to the Applicant’s reliance upon his status of employment and inability to afford legal representation these are matters which are not uncommon amongst Applicants in an unfair dismissal application and cannot, in the Commission’s view, amount to a reason allowing an Applicant to fail to comply with Directions in an application. Similarly, with the Applicant’s access to resources, the Commission has already discussed the administrative assistance which was offered to the Applicant in this regard. It too is not a reason allowing an Applicant to fail to comply with Directions in an application particularly in the current circumstances.

[59] The Commission is satisfied that the Applicant has failed to comply with the Directions of 17 June 2013 and that such failure was unreasonable. The Commission would dismiss the application, pursuant to s.399A of the Act, in relation to this failure on its own however will consider and take into account the following matters as well.

Further Direction or correspondence of 6 August 2013

[60] The content of this correspondence has been discussed above.

[61] The correspondence of 6 August 2013 provided the Applicant with a further period of one week, on top of the some 6 months since filing the application, to prepare and file his material. This period was provided more than 2 months since the date of the Conference of 30 May 2013 where the Applicant was first directed by the Commission to file additional material to allow the Commissions and Respondent to know the case that he was putting to allow for meaningful discussions to occur. The Respondent did not have to agree to this process but did so.

[62] This correspondence also put the Applicant on notice, about the consequences of non-compliance with specific reference s.399A of the Act.

[63] Subsequent to the Commission’s correspondence of 6 August 2013 the Respondent did in fact apply for the application to be dismissed pursuant to s.399A of the Act.

[64] Most importantly the Applicant was put on notice that if he failed to file his material in circumstance where no extension of time had been granted the Commission would consider dismissing the application for unreasonably failing to comply or for want of prosecution.

[65] The Applicant did correspond with the Commission on the day that compliance was required, 13 August 2013. This correspondence was received by the Commission a little more than one hour prior to the time for compliance.

[66] The Applicant did not, in this correspondence seek an extension of time, or seek to specify the reason or reasons for his non-compliance. Even if the matters raised by the Applicant (discussed at [22] above) were intended to be reasons for non-compliance or a request for an extension of time the reasons provided are not sufficient. A reference to a private matter, with no further detail, is not sufficient to grant an extension of time, particularly in the circumstances of this matter where the Applicant has been put on notice of the consequences of non-compliance. The reference to his wife’s alleged medical issues were only expressed to have occurred for the “last few days”. This correspondence was provided at a time when the Applicant had had a number of months to prepare his response and at this stage it should have been well progressed and in fact should have already been filed on two prior occasions. The matters raised by the Applicant, the manner in which they were expressed and the circumstances prevailing at the time of this correspondence lead to a conclusion that the failure to comply was unreasonable.

[67] The Commission is satisfied that the Applicant has failed to comply with the Directions correspondence of 6 August 2013 and that such failure was unreasonable. The Commission would dismiss the application, pursuant to s.399A of the Act, in relation to this failure as well.

Correspondence of 15 August 2013 and response 22 August 2013

[68] Prior to considering the application to dismiss the Applicant was provided a final opportunity to provide reasons for his failure to comply with Directions. The Applicant replied by way of correspondence on 22 August 2013.

[69] The correspondence of the Applicant has not provided specific reasons for his failure comply on multiple occasions, beyond those general matters he has raised previously and which have already been discussed above.

[70] Again, the Applicant has not been treated in a manner that is different to any other Applicant or Respondent before this Commission. The Applicant is under the misapprehension that the role of the Commission is to assist him to present his case or to give him “advice” on his application. This is incorrect and is inconsistent with the role of the Commission as an independent and impartial umpire in industrial disputes.

[71] The Commission has given the Applicant significant latitude in running his case, with the Applicant having had almost three months since the date of the Conference to file material in the Commission. No material has been filed at all. The Applicant has not contacted Chambers to clarify what was required of him, has not asked for information on Commission processes or procedures and has only contacted the Commission in response to the Commission’s correspondence in relation to his non-compliance. Any concerns raised by the Applicant in relation to the process have not been enunciated further than the general complaint..

[72] The weight of the material before the Commission currently is that upon filing the application on 3 February 2013 the Applicant advised the Commission that he was preparing material in support of his application and aware that his application was filed out of time, since that time the Applicant has not taken any positive step to file material in his application or to respond to the Respondent’s jurisdictional objection beyond his attendance in June at which time he was given assistance and clarification as to what was required of him. The Commission subsequently issued formal written Directions which clearly specified what was required.

[73] Even if a further allowance is made to account for a person, in the Applicant’s position, being unaware of the process for applying for an extension of time, a reasonable person, having knowledge of all the correspondence and Directions, would be expected, at the very least, to have contacted the Commission and specifically asked for information as to how to apply for an extension of time. Further a reasonable person would understand the need to file anything as being preferable to filing nothing or not responding in any way to Directions. The correspondence of 22 August 2013 is the first time that the Applicant has specifically relied upon his lack of understanding of how to apply for an extension of time. The only time the Applicant has contacted the Commission, since the issuing of the Directions in June, has been in response to correspondence to the Applicant regarding his non-compliance.

[74] The correspondence of the Applicant of 22 August 2013 does not specify any extenuating circumstance that would warrant a further indulgence being provided to him to file material. The Applicant has been given an extensive opportunity to file his case.

[75] The Commission is satisfied that the Applicant was, by this point, aware of the requirement to comply with Directions, aware of the consequences of not complying with Directions, aware of the application to dismiss pursuant to s.399A filed by the Respondent and aware that if he did not appropriately respond to the correspondence of 15 August 2013 the Commission would consider dismissing the application on the material already before the Commission.

Conclusion

[76] The Commission is cognisant that Applicants in appearing before the Commission may be experiencing difficulties associated with the circumstances of their dismissal. However the Act clearly contemplates, and the balance of authority prior to the inclusion of s.399A of the Act has been, that all parties before the Commission are to comply with Directions unless there is some reasonable explanation for a failure to do so.

[77] The Applicant in this matter has consistently failed to comply with Directions or seek any clarification from the Commission or an extension of time. The multiple failures to comply with Directions, at least in relation to the Directions and correspondence of 17 June 2013 and 6 August 2013, were unreasonable.

[78] The failure to provide any response to the final correspondence of 15 August 2013 is unacceptable and the Applicant was put on notice that a failure to provide any response would lead to the application to dismiss being considered on the basis of the material currently before the Commission.

[79] This decision has not specifically considered dismissing the application for want of prosecution pursuant to s.587 of the Act. In particular the application’s prospects of success. As the Applicant has failed to prosecute his response in response to the Respondent’s objections much of the same consideration in relation to s399A of the Act would be relevant to the Commission’s consideration pursuant to s.587 of the Act. It is sufficient to note that the material filed by the Respondent raises some significant hurdles that the Applicant would need to surmount in relation to both the extension of time and dismissal at the initiative of the employer.

[80] While the Commission has not given these considerations any weight in its consideration to dismiss pursuant to s.399A of the Act, on the material currently before it, the Applicant has not provided any adequate reason for the delay in filing, he was, according to his correspondence of 3 February 2013, aware of the time limits for filing and in light of the resignation issue the prospects of success are questionable. In relation to the question of resignation the Respondent has filed the Applicant’s resignation letter and statements of two of the management team of the Respondent which outlines the process undertaken by the Employer in its relationship with the Applicant in the months prior to the termination. This material presents a significant hurdle to the Applicant in progressing his application. On the material currently before the Commission it is likely that the application would also have been dismissed pursuant to s.587 of the Act.

[81] The application is dismissed pursuant to s.399A(1)(b) of the Act.

[82] I Order accordingly.

COMMISSIONER

 1   Form F2 Application for Unfair Dismissal Remedy filed 3 February 2013.

 2   Letter from Mario Lopez to Fair Work Commission dated 3 February 2013.

 3   Correspondence from Fair Work Commission to Mario Lopez dated 6 August 2013.

 4   Fair Work Act 2009 (Cth) s.577.

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