Nathan Rhodes v Lakeside Aust Pty Ltd T/A Pink Lake Butchers

[2021] FWC 3632

[2021] FWC 3632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372—General protections

Nathan Rhodes
v
Lakeside Aust Pty Ltd T/A Pink Lake Butchers
(C2021/2713)

DEPUTY PRESIDENT BEAUMONT PERTH, 23 JUNE 2021

Application to deal with other contraventions dispute - application to dismiss pursuant to 587(1)(c).

[1] On 12 May 2021, Mr Nathan Rhodes (Applicant) made a general protections application not involving dismissal under s 372 of the Fair Work Act 2009 (Cth)(the Act). The Applicant was a former employee of the respondent employer, Lakeside Aust Pty Ltd (Respondent). While the Applicant had named the Respondent as Pink Lake Butchers, I permitted a change to the Respondent’s name to accurately reflect the correct legal entity.

[2] The matter had been programmed for a conference on Thursday, 10 June 2021. The parties were directed to notify Chambers of their planned appearances and telephone contact numbers by email by no later than 16:00hrs (AWST) Tuesday, 8 June 2021. The Applicant did not respond to the email.

[3] On 10 June 2021, the Applicant did not present for the conference. My Chambers attempted to contact the Applicant by telephone on three occasions at 13:55hrs (AWST), 13:58hrs (AWST) and 14:03hrs (AWST). A telephone message was left on the last occasion.

[4] On 10 June 2021, Chambers emailed the Parties stating:

Further to the listed conference on Thursday, 10 June 2021, the Applicant did not present for the conference before Deputy President Beaumont. Chambers has attempted to contact the Applicant by telephone on three occasions and left one voice message on Thursday, 10 June 2021 at 13:58 hrs – 14:01 hrs AWST. It is observed that the Applicant did not file a request for an adjournment.

In this respect, it is observed that the attached notice of listing was issued on 20 May 2021 and was sent to [e-mail].

In light of the above, the Applicant is directed to file submissions as to why he did not attend the listed conference on Thursday, 10 June 2021, by no later than 17:00hrs (AWST) Monday, 14 June 2021.

If it is the case that the Applicant no longer wishes to proceed with the application, please inform Chambers in writing that you wish to discontinue the application.

If Chambers does not receive a response from the Applicant by 17:00hrs (AWST) Monday, 14 June 2021, the file will be closed, and the Commission will consider his application has been discontinued.

[5] On 11 June 2021, the Applicant sent an email to Chambers stating:

Sorry i missed our scheduled phone call yesterday i completely forgot about it.......I've handed my 2 weeks notice into my employer.

[6] On 11 June 2021, Chambers replied to the Applicant’s brief email stating:

…the Applicant is to advise Chambers if he wishes to proceed with the application or discontinue the application.

If Chambers does not receive a response from the Applicant by 17:00hrs (AWST) Monday, 14 June 2021, the file will be closed, and the Commission will consider his application has been discontinued.

Consideration

[7] Section 587(1) of the Act reads:

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.

[8] As the Applicant has not responded to the Commission’s repeated attempts to get in contact with him, and in light of his non-appearance at the teleconference listed for 10 June 2021, I have decided to dismiss his application. While the Applicant was informed that his application would be discontinued, out of an abundance of caution I have opted to dismiss his application instead.

[9] In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources in responding to a claim that the Applicant does not seem to have any intention of following through. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been given ample opportunity to make contact with the Commission but has failed to do so notwithstanding having been informed of the consequences for such failure.

Conclusion

[10] While the Respondent has not made an application seeking the dismissal of the application, I have, on my own initiative pursuant to s 587(3)(a) of the Act, found that the application should be dismissed. I order 1 accordingly.

DEPUTY PRESIDENT

Hearing details:

On the papers

Printed by authority of the Commonwealth Government Printer

<PR731001>

 1   PR731011.