Robert Davies v FL.Smidth
[2018] FWC 7688
•21 DECEMBER 2018
| [2018] FWC 7688 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Robert Davies
v
FL.Smidth
(U2018/10772)
| Deputy President Dean | SYDNEY, 21 DECEMBER 2018 |
Application for an unfair dismissal remedy.
On 18 October 2018, Mr Robert Davies made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.
Mr Davies’ application states that he commenced employment with FL.Smidth on 10 November 2017 and that his dismissal took effect on 5 October 2018.
On 29 October 2018 FL.Smidth, filed an Employers Response (Form F3) objecting to the application on the grounds that Mr Davies was engaged through a labour hire company and was not an employee of FL.Smidth.
The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 14 November 2018. However, the conciliation could not take place as Mr Davies was not able to be contacted.
Correspondence was sent to Mr Davies on 29 November 2018 asking him to respond to the assertion by FL.Smidth that he had not been employed by FL.Smidth. The correspondence required Mr Davies to file in the Commission any documents that may confirm that he had been an employee of FL.Smidth.
On 7 December 2018, correspondence was sent to Mr Davies noting that he had previously been directed to file material supporting his assertion that he was employed by FL.Smidth. Mr Davies was given until 4:00pm on 10 December 2018 to respond. Mr Davies was advised that in the absence of any material being received, his application may be dismissed.
Final attempts were made to contact Mr Davies by telephone on 14 December 2018.
To date, Mr Davies has not responded to any of the Commission’s correspondence.
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), 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.
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).
In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
DEPUTY PRESIDENT
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