Nathan Butler v Toll Global Resources

[2013] FWC 2761

[2013] FWC 2761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Butler
v
Toll Global Resources
(U2012/17448)

COMMISSIONER JONES MELBOURNE, 14 MAY 2013

Application dismissed pursuant to s.587 of the Act on the Commission’s own motion.

[1] On 31 December 2012, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Nathan Butler (the Applicant).

[2] The matter was listed for conciliation with a Fair Work Commission (FWC) Conciliator on 4 February 2013. Conciliation could not take place as the Applicant did not attend.

[3] The file notes disclose that, on 2 May 2013 a member of the Unfair Dismissal Case Management Team of the FWC called the Applicant who advised that he did not have time to complete his submissions and that he did not want to continue with his matter. The Applicant was informed that he should file a Notice of Discontinuance if he did not wish to proceed with his matter. A Form 50 - Notice of Discontinuance was sent to the Applicant by email on 3 May 2013. To date no response has been received.

[4] Section 587 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.

[5] I am satisfied that, in determining whether to dismiss a matter on its own initiative, the Commission is not limited to matters specified in s.587(1)(a) to (c). The opening words ‘Without limiting when FWC may dismiss a matter’, clearly confers a broader discretion.

[6] Section 588 of the Act provides:

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

[7] Rule 6.2 of the Fair Work Australia Rules 2009 (the Rules) provides:

6.2 Subject to these Rules:

(a) an application to FWA must be made using the form in Schedule 2 that is specified for the purpose in Schedule 1; and

(b) notice must be given to FWA using the form in Schedule 2 that is specified for the purpose in Schedule 1.

[8] Schedule 1 of the Rules provides Form 50 for Notice of Discontinuance.

[9] Rule 4 of the Rules provides:

FWA may dispense with compliance with any of the requirements of these Rules before or after the occasion for compliance arises.

[10] In the circumstances, I am satisfied the Applicant intended to discontinue his application but has failed to file the Notice of Discontinuance in accordance with the Rules.

[11] Pursuant to Rule 4, I have decided to dispense with the requirements of the Rules.

[12] In the circumstances of this matter, I have decided to dismiss the application pursuant to s.587 on the basis the Applicant does not intend to prosecute his application. An Order to this effect will be issued shortly.

COMMISSIONER

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