Nathan Roberts v C&D Hickman Constructions

[2019] FWC 154

[2019] FWC 154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Roberts
v
C&D Hickman Constructions
(U2018/11323)

DEPUTY PRESIDENT DEAN SYDNEY, 14 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 3 November 2018, Mr Nathan Roberts made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009.

[2] Mr Roberts’ application stated that he commenced employment with C&D Hickman Constructions (“Hickman Constructions”) on 19 September 2017 and that his dismissal took effect on 2 October 2018.

[3] On 7 November 2018 Hickman Constructions filed an Employers Response (form F3) objecting to the application on the grounds that Mr Roberts’ dismissal had not yet taken effect, and that his dismissal was due to take effect on 13 November 2018.

[4] The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 27 November 2018. However, the conciliation could not take place as Mr Roberts was not able to be contacted at that time.

[5] On 18 December 2018, correspondence was sent to Mr Roberts directing him to advise the Commission if he wished to continue with his application. The correspondence required Mr Roberts to reply by no later than 4.00pm on Friday 28 December 2018.

[6] On 3 January 2019, correspondence was sent to Mr Roberts noting he had previously been directed to contact the Commission but had not done so. He was given until 4.00pm on Friday 4 January 2019 to respond and was advised that in the absence of any correspondence being received his application may be dismissed.

[7] Final attempts were made to contact Mr Roberts by telephone on 4 and 11 January 2019.

[8] To date Mr Roberts has not responded to any of the Commission’s correspondence.

[9] 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.

[10] 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).

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

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

DEPUTY PRESIDENT

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