Painui James Totorewa v Oporto Cavill Ave

[2017] FWC 188

[2017] FWC 188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Painui James Totorewa
v
Oporto Cavill Ave
(U2016/10314)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 16 August 2016, Mr Painui Totorewa made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The matter was listed for conciliation on 22 September 2016, however it could not take place as Oporto Cavill Ave could not be contacted. Mr Totorewa confirmed on 23 September 2016 that he wished to pursue the matter.

[3] On 18 October 2016, directions were issued and the matter was listed for hearing. Mr Totorewa was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 7 November 2016.

[4] On 20 October 2016, Mr Totorewa wrote to the Fair Work Commission seeking clarification as to the content of the Notice of Listing and directions. The following day, a staff member telephoned Mr Totorewa and advised they would send an email with links to the Commission’s website which could assist him in preparing his material. The email was sent to Mr Totorewa on 24 October 2016 and it also reminded him that his material was due on 7 November 2016.

[5] As Mr Totorewa did not file any material in accordance with the directions, on 8 November 2016 the Commission telephoned Mr Totorewa regarding his overdue material. Mr Totorewa said the material was emailed by a friend on Friday. Mr Totorewa was advised the material had not been filed in the Commission and he said despite him not having internet access, he would file the material by 5.00pm that day. No material was filed in the Commission.

[6] On 16 November 2016, correspondence was sent to Mr Totorewa confirming no material had been filed and that the matter would be listed for non-compliance hearing on 2 December 2016 should he not contact the Commission. On the same day, a text message was also sent to Mr Totorewa asking that he telephone the Commission.

[7] On 22 November 2016, a Notice of Listing was sent to Mr Totorewa advising the matter had been set down for non-compliance hearing on 2 December 2016. The following day, a text message was sent to Mr Totorewa confirming same.

[8] On 30 November 2016, Mr Totorewa telephoned the Commission and advised he had just returned from New Zealand and had missed calls on his phone. Mr Totorewa said he had no access to internet or telephone while in New Zealand due to earthquakes. Mr Totorewa was advised of the non-compliance hearing which was taking place via telephone on 2 December 2016 and that he would need to explain reasons for his non-compliance with directions to a Member of the Commission.

[9] Mr Totorewa and Oporto Cavill Ave did not attend the non-compliance hearing before Deputy President Kovacic on 2 December 2016. Consequently, on 5 December 2016, correspondence was sent to Mr Totorewa directing that an outline of submissions and any witness statements he intended to rely upon be filed by no later than close of business on 12 December 2016. The correspondence noted that if no material was filed by close of business on 12 December 2016, it would be assumed Mr Totorewa no longer wished to pursue the application.

[10] To date, Mr Totorewa has not filed an outline of submissions or any witness statements in the Commission.

[11] 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.


(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.

[12] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[13] Mr Totorewa has not demonstrated a willingness to prosecute his case since the directions were issued on 18 October 2016 and nor has he engaged in the non-compliance hearing and subsequent direction to file submissions. I have formed the view Mr Totorewa no longer wishes to pursue his application. In all the circumstances, I have determined to dismiss the application, on my own initiative, pursuant to s.587(3)(a) of the Act for want of prosecution. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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