Mr Robert Schenck-Reid v T.O.R Products Trust
[2024] FWC 1813
•11 JULY 2024
| [2024] FWC 1813 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Robert Schenck-Reid
v
T.O.R Products Trust
(U2024/4452)
| COMMISSIONER PLATT | ADELAIDE, 11 JULY 2024 |
Application for an unfair dismissal remedy – application dismissed.
On 17 April 2024, Mr Robert Schenck-Reid lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with T.O.R Products Trust (the Respondent).
The matter was listed for a staff conciliation on 23 May 2023.
The Applicant sought an adjournment of the staff conciliation on 4 May 2024 and 23 May 2024, providing the following reasons:
4 May 2024
“I am now working full-time at Sydney tools and wont be able attend the consolidation between tor and myself 7am -5.30pm everyday !!”
23 May 2024
“I can not atend the meeting today as i must work ! Must reschedule to 24th of may 2024 any time !! Day off !!”
The adjournment request was refused and the conciliation did not proceed due to the Applicant not attending.
On 5 June 2024, the Commission emailed the Applicant proposing a second conciliation, referral to a Member for formal hearing or withdrawal of the application. On 10 June 2024, the Applicant requested the matter be referred for formal hearing.
The matter was allocated to my Chambers on 14 June 2024.
On 18 June 2024, my Chambers issued a Notice of Listing for a Directions Conference via telephone at 3:30pm (SA) Thursday, 20 June 2024. The Applicant did not attend that Conference.
On 20 June 2024, my Chambers issued a Notice of Listing with Directions containing a date for arbitration and a timeline for the filing of submissions. Paragraph [1] provided that if the Applicant fails to comply with these Directions (in particular the requirement to submit his materials by 4 July 2024) his application will likely be dismissed for want of prosecution without further hearing.
On 4 July 2024, the Applicant was sent an email reminder to file his material and was notified that a failure to file or communicate with Chambers would likely result in the application being dismissed (for want of prosecution). On 4 July I determined to dismiss the application.
On 5 July 2024, the Applicant communicated the following to Chambers:
“I work almost every day in a new job that the days have beenbchanging shift times i do apologies if we could re schedule for asap i hnow have a clear roster to organise time !!"sorry again i don't wanna loose my job over waterworld so i do want a resolution in this matter the small amount of money i bellieved i am owed clearly ring kelly or steven as them are 15 min without pay !!”
To date the Applicant has not filed his material.
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.”
It is apparent to me that the Applicant has failed to prosecute his case since its lodgement. The Applicant has been repeatedly warned that his failure to engage and/or comply with the Directions could result in the dismissal of his application. In my view, the circumstances above justify the dismissal of the application in accordance with s.587, and I so order.
COMMISSIONER
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