Robert Hargreaves v Pool Filtration Services Pty Ltd T/A All Pool Servicing

[2018] FWC 1096

[2018] FWC 1096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Robert Hargreaves
v
Pool Filtration Services Pty Ltd T/A All Pool Servicing
(U2017/12464)

DEPUTY PRESIDENT DEAN SYDNEY, 22 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] On 22 November 2017, Mr Robert Hargreaves made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Hargreaves’ application states that he commenced employment with Pool Filtration services Pty Ltd T/A All Pool Servicing (the Respondent) on or around 9 December 2010 and that his dismissal took effect on 23 October 2017.

[3] The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 12 December 2017. However the conciliation could not take place as Mr Hargreaves was not able to be contacted at that time.

[4] The matter was allocated to my chambers on the basis that it appeared that Mr Hargreaves application had been made outside the 21 day period prescribed by s.394(2) of the Act. Correspondence to that effect was sent to Mr Hargreaves on 23 January 2018. The correspondence required Mr Hargreaves to file in the Fair Work Commission (the Commission) a statement explaining why the Commission should extend the time for the lodgement of his application.

[5] On 6 February 2018, correspondence was sent to Mr Hargreaves noting that he had previously been directed to file a statement in the Commission but had not done so. Mr Hargreaves was given until 4:00pm on 9 February 2018 to respond. Mr Hargreaves was advised in the absence of any material being received, his application may be dismissed.

[6] On 20 February 2018 a final attempt was made to contact Mr Hargreaves by telephone. The Commission left a voicemail message requesting that Mr Hargreaves contact my chambers in relation to his application.

[7] To date, Mr Hargreaves has not provided a response to the Commission’s correspondence.

[8] Section 587(1) 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.

[9] 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).

[10] In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[11] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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