Nicholas Burnett v Concrew NSW Pty. Limited
[2023] FWC 2018
•14 AUGUST 2023
| [2023] FWC 2018 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicholas Burnett
v
Concrew NSW Pty. Limited
(U2022/7958)
| COMMISSIONER BISSETT | MELBOURNE, 14 AUGUST 2023 |
Application for an unfair dismissal remedy
On 1 August 2022 Mr Nicholas Burnett (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which he claimed that he was unfairly dismissed from his employment with Concrew NSW Pty. Limited (the Respondent).
The matter was not subject to conciliation for some time for reasons that are not relevant to this decision. Conciliation was conducted by a staff conciliator on 7 February 2023 at which the matter apparently settled.
On 9 May 2023 the Commission received an email from the Respondent enquiring as to whether the matter could be re-opened as no signed terms of settlement had been received from the Applicant.
On 28 June 2023 the Commission received an email from the Applicant requesting that the matter be re-opened.
On 10 July 2023 the matter was subject to a mention before me. Following from the mention a settlement agreement was signed by the Applicant and subsequently sent to the Commission on 11 July 2023.
On 17 July 2023 the Applicant telephoned my chambers and advised that he had received payment from the Respondent in accordance with the terms of the agreement. However, he indicated some concerns with this as it was an amount less than that provided for in the settlement agreement.
In order to assist the parties my chambers sent an email to the parties later that day confirming that Mr Burnett was paid an amount that was taxed in accordance with the applicable law, as was outlined in the agreement. Given his confirmation that the terms of the agreement had been fulfilled (as payment was made and received), I requested that the Applicant provide a Form F50 - Notice of Discontinuance to the Commission.
My chambers then contacted Mr Burnett by telephone on 27 July 2023. A voicemail message was left asking that he contact the Commission or provide a Notice of Discontinuance.
On 28 July 2023 my chambers again attempted to contact Mr Burnett. On that day there were five attempts to contact the Applicant, including answering two phone calls from the Applicant that were terminated by him after my associate identified himself.
On 1 August 2023 my chambers sent further correspondence to Mr Burnett. That correspondence advised that I was considering dismissing his application due to his apparent failure to engage in the processes of the Commission and prosecute his claim. The Applicant was advised to provide any submissions as to why his application should not be dismissed by 4.00 pm on 7 August 2023.
No submissions or further correspondence has been received from the Applicant.
Section 587 sets out when the Commission may dismiss an application. It 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 prospect of success.
Section 587 does not limit the circumstances where the Commission can consider dismissing an application. In this matter I consider it appropriate to exercise my discretion to dismiss the application of Mr Burnett in accordance with s.587(1) of the FW Act. I do so as Mr Burnett has unreasonably refused to engage with the Commission in relation to the finalisation of his application and I do not consider that he will do so in the future.
The application is therefore dismissed.
COMMISSIONER
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