Mr Tyson Thew v Game Automotive Pty Ltd

[2022] FWC 214

[2022] FWC 214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Tyson Thew
v

Game Automotive Pty Ltd

(U2021/11460)

COMMISSIONER RIORDAN SYDNEY, 11 FEBRUARY 2022

Application for an unfair dismissal remedy

1. Mr Tyson Thew (the Applicant) lodged an unfair dismissal application (the Application) on 13 December 2021 claiming that he was unfairly dismissed by Game Automotive Pty Ltd (the Respondent) on 25 November 2021.

1. In its Form F3 – Employer Response, the Respondent raised jurisdictional objections on the grounds that the employer is a small business employer and the employer complied with the Small Business Fair Dismissal Code. The Respondent advised that it did not agree to participate in a Conciliation before a Fair Work Commission (the Commission) staff conciliator on 24 January 2022 and sought that the matter be referred for determination of the jurisdictional objections.

1. The matter was allocated to my Chambers on 21 December 2021 for determination of the jurisdictional objections. A notice of listing was issued on 21 December 2021, for a Conciliation Conference to be held on 11 January 2022. The notice of listing requested that the parties confirm their attendance and contact details ahead of the listing date. The Applicant did not respond.

1. The Applicant failed to attend the Conference on 11 January 2022. My Associate attempted to contact the Applicant three times at 10:31am, 10:42am and 10:46am AEDT on the mobile number he provided in the Application. Multiple voice messages were left reminding the Applicant of the conference and requesting that he call the Commission back as soon as possible.

1. On 12 January 2022, my Chambers sent a letter to the Applicant, via email, noting that he had failed to attend the Conference as listed and requiring him to provide an explanation as to why his application should not be dismissed under s.587 of the Act. The Applicant was given until 19 January 2022 to respond. The letter also stated:

“This is formal notification that if you fail to provide a satisfactory response in writing, the Fair Work Commission may dismiss your application pursuant to section 587 of the Fair Work Act, 2009 (the Act).”

1. The Applicant failed to provide a response by 19 January 2022.

1. On 21 January 2022 correspondence was received from the Respondent requesting an update regarding the status of the application. On the same date, my Chambers sent a further letter to the Applicant via email and express post. The letter noted that the Chambers was not in receipt of any explanation from the Applicant as to why he failed to participate in the conference that was listed on 11 January 2022. The Applicant was granted a further seven days, until 28 January 2022, to provide an explanation for his non-attendance, in view of that fact that that the initial letter dated 12 January 2022 was sent only by email and not posted as Commission staff were under directions to work from home given the Covid-19 pandemic. The letter also stated:

“In the event no response is received from you, this is formal notification that the Fair Work Commission may dismiss your application pursuant to section 587 of the Fair Work Act, 2009 (the Act).”

1. No correspondence or telephone contact has been received from the Applicant to date.

1. 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.

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.”

1. In the circumstances, I have decided to dismiss the application for want of prosecution.

1. I so Order.

COMMISSIONER

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