Pranish Chand v Capital S.M.A.R.T Repairs

[2013] FWC 8748

[2013] FWC 8748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pranish Chand
v
Capital S.M.A.R.T Repairs
(U2013/11302)

COMMISSIONER WILSON MELBOURNE, 8 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 8 July 2013 Mr Pranish Chand lodged an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).

[2] The matter was listed for conciliation with a Fair Work Commission (the Commission) Conciliator on 13 August 2013. Mr Chand could not be contacted and the conciliation did not take place.

[3] On 18 October 2013, during a non compliance hearing, Mr Chand verbally advised the Commission that he wanted to discontinue his application.

[4] The same day the Commission emailed Mr Chand requesting he file and serve a notice of discontinuance by no later than 12.00pm Friday, 25 October 2013. The letter further stated that should a notice of discontinuance not be received by the Commission, the file may be allocated to a member to dismiss the application. To date no response has been received.

[5] 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:

...

(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.

...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[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 their application, but 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 their application and it has no reasonable prospects of success. I order accordingly.

COMMISSIONER

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