Mr Shane Ballingall v A & N Enterprises Pty Ltd T/A Adams Coachlines

[2014] FWC 6012

[2014] FWC 6012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Shane Ballingall
v
A & N Enterprises Pty Ltd T/A ADAMS Coachlines; Mr Adam Barnard; Ms Nadine Johnston
(C2014/1105)

COMMISSIONER BULL SYDNEY, 24 NOVEMBER 2014

Application to deal with contraventions involving dismissal - application dismissed.

[1] On 24 June 2014, Mr Shane Ballingall (the Applicant) made an application to the Fair Work Commission (the Commission) alleging that he was dismissed by A & N Enterprises Pty Ltd T/A ADAMS Coachlines in contravention of part 3-1 of the Fair Work Act 2009 (the Act). The Application also named Mr Adam Barnard, Managing Director and Ms Nadine Johnston, Director as Respondent’s.

[2] In accordance with subsection 368(2) of the Act, a conference was set down for 8 July 2014 to deal with the dispute.

[3] At the conference the Applicant was represented by MDC Legal and the Respondents were represented by HLS Legal.

[4] The matter was settled in principle at the conference and a settlement agreement was drafted.

[5] At the conclusion of the conference, the Respondent advised that it sought to make some adjustments to the settlement agreement and would then send a copy to the Applicant.

[6] The Respondents representative advised the Commission on 25 July 2014, that whilst the parties have an agreement in principle, the matter had not yet progressed to the point of a settlement but would keep the Commission informed on the status of the matter.

[7] On 28 July 2014, the Respondents representative advised the Commission that they wrote to the Applicant’s representative on 23 July 2014, noting that unless a draft settlement agreement was received by close of business Friday, 25 July 2014, the Respondents would have no option but to conclude that the Applicant had reneged from the Agreement.

[8] The Respondents submitted that as no settlement agreement was received, that the Commission issue a certificate in accordance with s.368(3) of the Act.

[9] The Applicant’s representative sent correspondence to the Commission shortly after asking that the Commission not issue a certificate at this time to allow the parties an opportunity to discuss the amendments made by the Respondent in the settlement agreement.

[10] On 12 August 2014, the Commission was advised that MDC Legal was no longer acting for the Applicant and a Form F54 - Notice of Representative Ceasing to Act was filed. The correspondence stated that all future correspondence should be sent directly to the Applicant.

[11] On 19 August 2014, the Commission sent correspondence to the Applicant asking him to advise the Commission on the status of the matter by 22 August 2014.

[12] No correspondence was received from the Applicant.

[13] Further correspondence was sent to the Applicant by the Commission on 27 August 2014. The Applicant was advised that if the Commission did not hear from him by Friday, 29 August 2014, the matter would be dismissed. The following Monday, 1 September 2014, the Applicant sent an email to my Chambers which stated:

“Dear Associate,

Apologies for the late reply to your email of last week, unfortunately your email was found in my junk mail box and was only found this morning.

My commercial lawyer Keith Thomas is currently preparing an updated settlement offer for all outstanding matters, including this one, which will be presented to the other parties early this week. His delay in this was awaiting a detailed report by an accountant into the business, which has been completed late last week.

I will update you when we have had further action on this.

Regards,

Shane Ballingall”

[14] My Chambers received no further update from the Applicant as undertaken in his email.

[15] On 10 November 2014, the Respondents representative requested the Commission to dismiss the application having regard to the significant time since the initial conference (8 July 2014).

[16] The Commission sent correspondence to the Applicant on 17 November 2014. The Applicant was advised that if the Commission did not hear from him by noon, Friday, 21 November 2014, the matter would be dismissed. A copy of the correspondence was also sent to the Applicant via post, to alleviate any concern that the correspondence might be caught up in the Applicant’s junk email.

[17] The Applicant has not sought to make contact with my Chambers.

[18] Section 587 of the Act provides powers to the Commission to dismiss applications. It states:

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.

(My emphasis)

[19] Pursuant to the powers of s.587 of the Act it provides that the Commission may dismiss an application on its own initiative (s.587(3)(a)).

[20] The Applicant has been provided with a number of opportunities to advise the Commission as to the status of its application. The Applicant has not sought to make contact with the Commission.

[21] I cannot be satisfied that all reasonable attempts to resolve the dispute are likely to be unsuccessful as per s.369 of the Act due to the non response of the Applicant. In these circumstances, where the Applicant has not responded to contact from the Commission and having requested that no certificate issue, I hereby dismiss the application pursuant to s.587(3)(a) of the Act.

COMMISSIONER

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