Ronald Rauert v Roadfleet Services Pty Ltd

[2023] FWC 3337

[2023] FWC 3337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ronald Rauert
v

Roadfleet Services Pty Ltd

(U2023/9449)

VICE PRESIDENT CATANZARITI SYDNEY, 14 DECEMBER 2023

Application for an unfair dismissal remedy

1. Ronald Rauert (the Applicant) was employed by Roadfleet Services Pty Ltd (the Respondent) from 28 February 2023 until he was dismissed on 21 September 2023.

1. On 26 September 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The Respondent provided a F3 – Employer’s Response Form with no objections on 17 October 2023.

1. A conciliation was scheduled for 31 October 2023 at 9.15 am at which the Applicant did not attend.  The Fair Work Commission conciliator attempted to contact the Applicant via telephone twice that morning and left voicemails advising that the conciliation is adjourned as the conciliator has not heard from him.

1. The conciliator wrote to the parties to advise that the conciliation:-

“did not proceed because of the unavailability of the Applicant. I left voice mail messages for them to call me at 9.18am and 9.40am (Qld time) but received no response.  If you want this matter to proceed via a further conciliation, then you need to email me your request within two working days, together with advice of any dates or times for which you would be unavailable.” 

The Respondent emailed the conciliator that day to advise that he is willing to participate in a second conciliation.  There was no response from the Applicant.

1. The matter was allocated to my Chambers and on 28 November 2023, correspondence was sent to the Applicant in relation to the no show at conciliation and he was required to respond by 6 December 2023. No response was received at this time.

1. Further correspondence was sent to the Applicant on 7 December 2023 and he was required to respond by 5:00pm on 12 December 2023. It was in this correspondence that the Applicant was advised his application would be dismissed without any notice if no response was received.

1. To date, the Applicant has not responded to any of the correspondence sent by my Chambers.

1. 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.

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.

(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.”

1. 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).

1. In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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