Mr Shane Doorey v JJC Electrics T/A Electrician

[2017] FWC 6406

[2017] FWC 6406

FAIR WORK COMMISSION

DECISION

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

Mr Shane Doorey
v
JJC Electrics T/A Electrician
(U2017/10870)

DEPUTY PRESIDENT DEAN SYDNEY, 1 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 9 October 2017, Mr Shane Doorey made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Doorey’s application states that he commenced employment with JJC Electrics T/A Electrician (the Respondent) on 27 October 2016 and that his dismissal took effect on 9 October 2017.

[3] On 7 November 2017, Mr Doorey sent an email to the Commission which stated: “[I]s it too late to cancel my application?”

[4] On 8 November 2017, the Commission sent the following correspondence to Mr Doorey:

“I can cancel your application should you no longer wish to proceed with matter.

Please note once we cancel the conciliation and close the matter, you are unable to bring this matter back to the commission at a later date.

Please confirm via reply email you would like to proceed with withdrawing this application?”

[5] The Commission attempted to contact Mr Doorey by telephone on 8 November 2017 and 9 November 2017. As these attempts were unsuccessful, the Commission sent the following correspondence to Mr Doorey on 9 November 2017:

“The Commission has not received confirmation from you on how you would like to proceed with this matter, as a result the conciliation scheduled for 10 November has been cancelled.

Please clarify at your earliest convenience if you intend to proceed with this application?

If the commission does not receive a response from you by close of business 15 November, the matter will be referred to a formal hearing.”

[6] No response was received by Mr Doorey, therefore on 17 November 2017, the application was allocated to my Chambers to be further allocated for arbitration.

[7] On 20 November 2017, my chambers sent the following correspondence by email and express post to Mr Doorey:

“Dear Mr Doorey,

Re: U2017/10870 – Shane Doorey v JJC Electrics T/A Electrician

I refer to your application for unfair dismissal remedy that you lodged with the Fair Work Commission (the Commission) on 9 October 2017.

Your application has now been allocated to Deputy President Dean.

The Commission has made a number of attempts to contact you by telephone, on 27 October, 6 November, 8 November, 9 November and 16 November 2017, and by post, on 27 October, 6 November and 9 November 2017.

Despite our requests for you to contact the Commission, unfortunately we have not received a response from you.

You are directed to advise our chambers within 7 days if you would like to continue with your unfair dismissal application.

If you decide to discontinue your application, you can advise our chambers via email or telephone that you no longer wish to pursue your claim, or you may file a Form F50 Notice of Discontinuance. It is important to note that discontinuing an application means that the matter cannot be pursued at a later time.

If we do not hear from you by 4pm on Monday, 27 November 2017, then your application may be dismissed and a Decision will be issued without any further notice to you.

If you have any questions in relation to the above please contact my chambers [number provided].”

[8] On 28 November 2017, correspondence was sent to Mr Doorey noting that he had previously been directed to contact the Commission to confirm whether he intended to pursue his application but had not done so. Mr Doorey was given until 4pm on 30 November 2017 to respond. Mr Doorey was advised in the absence of any response, his application may be dismissed.

[9] To date, Mr Doorey has not replied to any of the Commission’s correspondence.

[10] Section 587(1) of the Act 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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[11] The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[12] In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[13] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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