Mr Robert Fox v Uniting T/A Caroona Aged Care, Uniting

[2018] FWC 138

[2018] FWC 138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Robert Fox
v
Uniting T/A Caroona Aged Care, Uniting
(C2017/4775)

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 9 JANUARY 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES.

Background

[1] On 29 August 2017, Mr Robert Fox (Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with an alleged dispute with Uniting T/A Caroona Aged Care, Uniting (Respondent).

[2] The matter was listed for initial conference on 7 September 2017 and subsequently a further conference on 13 September 2017.

[3] The matter was then set down for hearing on 24 October 2017, with directions being made for the filing of formal submissions. This included that the Applicant was to file any outline of submissions, witness statements and documentary material upon which he intended to rely upon by 5.00pm on Monday 2 October 2017. (Directions)

[4] The Applicant did not file in accordance with the Directions.

[5] The Commission wrote to the Applicant on 3 October 2017 about this noncompliance, to which it received no response.

[6] The Commission then wrote to the Applicant on 16 October 2017, requiring the Applicant to advise the Commission whether he wanted to continue with his application by, by 5.00 pm on Wednesday, 18 October 2017.

[7] The Applicant did not contact the Commission in accordance with this correspondence.

[8] On 24 October 2017, the Respondent filed an application the proceedings to be dismissed pursuant to s.587 of the Act.

[9] On 24 October 2017, the Commission contacted the Applicant by telephone. The Applicant stated that he had been in Darwin and not checking his email account.

[10] On 25 October 2017, the Commission listed the matter tentatively to be heard on issue of dismissal under s.587 of the Act on 5 December 2017. This included the Applicant filing their materials by no later than Wednesday 22 November 2017 (Dismissal Directions).

[11] The Applicant did not file in accordance with the Dismissal Directions.

[12] On 1 December 2017, the Respondent requested that the Commission determine the matter on the papers as the Applicant has been unresponsive. Subsequently the Commission directed the Applicant file any objection to this proposition by 12:00pm 4 December 2017.

[13] The Applicant did not object to this matter being decided on the papers.

Consideration

[14] The Commission will determine this application on the papers as the Applicant did not file any materials in opposition to this proposition.

[15] Section 587 of the Act sets out why and how the Fair Work Commission may dismiss an application:

“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.”

[16] The Respondent submitted in relation to the matter being dismissed:

“17. The respondent says that the applicant has continually failed to comply with the directions from the Commission

18. After requesting that the matter be listed for hearing, the applicant then filed no evidence in the matter, no outline of submissions or any documentary material. The respondent was therefore put to the expense of filing an outline of submissions and documentary evidence in proceedings which the applicant was unable to prove and/or maintain.

19. The respondent submits that as the applicant has flagrantly disregarded the correspondence and directions from the Commission and filed no material in the proceedings, the Originating Application has no prospect of success.”

[17] In circumstances were the applicant has failed to prosecute the matter by failing to comply with the Commission’s directions, the application has no reasonable prospects of success within the meaning of s.587(1)(c) of the Act.

[18] Consequently, after considering all the material, the Applicant’s application under s.739 of the Act is dismissed. An Order giving effect to this decision will be issued today.

[19] In the course of its submissions about the dismissal of the application, the respondent alerted to the possibility of a costs application. If it desires to make the same, it should do so in the usual way following the making of the Order to dismiss.

COMMISSIONER

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