Robert Drew v Nortek Developments Pty Ltd as trustee for the Nortek Developments Unit Trust

[2024] FWC 2755

[2024] FWC 2755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Drew
v

Nortek Developments Pty Ltd as trustee for the Nortek Developments Unit Trust

(U2024/7415)

DEPUTY PRESIDENT DEAN CANBERRA, 3 OCTOBER 2024

Application for an unfair dismissal remedy – application dismissed.

1. This decision concerns an application made by Mr Robert Drew (Applicant) pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal from Nortek Developments Pty Ltd as trustee for the Nortek Developments Unit Trust (Respondent).

1. The Applicant commenced casual employment with the Respondent on 23 February 2024 and was contracted to perform duties at the Dartbrook Coal Mine in New South Wales. He was advised on 14 June 2024 that his employment at Dartbrook site was terminated but the Respondent would look into placing him in a suitable role at other sites.

2. The Respondent contended that the Applicant was not dismissed and raised this as a jurisdictional objection to the unfair dismissal application.

3. Despite the objection, the Respondent agreed to participate in conciliation which took place on 19 June 2024. The matter was not resolved at conciliation and was referred to me to deal with the application.

1. Following a directions conference on 2 September 2024, the matter was listed for hearing on 29 October 2024 and directions were issued.

1. The Directions required the Applicant to file an outline of submissions, any witness statements and other documentary material he wished to rely on by 4:00 pm on 23 September 2024. The Applicant did not file any material by the stipulated date.

1. On 25 September 2024, my chambers wrote to the Applicant about his non-compliance with the Directions. The correspondence required the Applicant to file his material by 9:00 am the following day, being 26 September. The Applicant was advised that failure to comply with the Directions without a reasonable explanation may result in his application being dismissed.

1. Later on the same day, the Applicant wrote to my chambers in the following terms:

“I have been unable at this time to get in touch with the witnesses to support my claim. I would like to extend the time in which I can do so. I do wish to proceed with the application.”

1. In response, the Applicant was advised that no further extension will be granted and he must file his submission and evidence by 9:00 am on 26 September 2024 or his application would be dismissed.

1. To date, the Applicant has not filed any material in accordance with the Commission’s directions and he has made no contact with the Commission since 25 September 2024.

1. Section 587 of the Act provides the Commission with a broad discretion to dismiss an application. It reads:

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.

1. The Applicant has unreasonably failed to comply with directions of the Commission. I am therefore satisfied that the Applicant has not demonstrated an intention to pursue his unfair dismissal application. Accordingly, I have decided to dismiss the application for want of prosecution pursuant to s.587 of the Act.

1. An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

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