DECISION

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

Ryan Fenech
v
J A Grigson T/A J A Grigson
(U2018/1689)

COMMISSIONER HAMPTON

ADELAIDE, 4 MAY 2018

Application for relief from unfair dismissal – applicant unable to be contacted – conciliation did not proceed – matter referred for determination - no contact from applicant – applicant advised matter would be dismissed if no contact made – application taken to be abandoned – application dismissed.

[1] On 20 February 2018, Mr Ryan Fenech made an application under s.394 of the Fair Work Act 2009 (the FW Act) for an alleged unfair dismissal by his former employer, J A Grigson T/A J A Grigson.

[2] The matter was duly listed for conciliation by telephone on 29 March 2018 before a Fair Work Commission Conciliator. As part of the preparation for the conciliation, various unsuccessful attempts were made to contact Mr Fenech, via his mobile telephone number and email address, to confirm his attendance. The conciliation conference ultimately did not proceed and neither party sought that the conciliation be re-listed. The matter was subsequently referred to this arm of the Commission for hearing and determination.

[3] Prior to conducting a pre-arbitration directions conference, my Chambers wrote to Mr Fenech to ascertain whether he intended to proceed with the application, given his lack of engagement to that point. Further, Mr Fenech was advised that if he did not contact the Commission by close of business, Friday 27 April 2018, his application would be taken to be abandoned and would be dismissed without further notice or hearing. In the circumstances, the correspondence was sent both by email, and in hard copy to Mr Fenech’s postal address, on 20 April 2018.

[4] There has been no contact made with the Commission by Mr Fenech, or anyone on his behalf, including in the period of time that has lapsed since the due date for some contact to be made. I note also the various earlier unsuccessful attempts to have Mr Fenech engage with his application.

[5] Mr Fenech has been provided with a reasonable opportunity to advance his case and has not done so. This has occurred in the context of advice that the Commission would dismiss his application without further notice or hearing if he did not take some steps to advance the matter. He has, in effect, abandoned this application.

[6] Section 587(1) of the FW 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

[7] There are no reasonable prospects that an abandoned application can succeed in these circumstances.

[8] In all of the circumstances of this matter I consider that it is appropriate to exercise my discretion to dismiss the unfair dismissal application.

[9] Accordingly, Mr Fenech’s unfair dismissal application is to be dismissed. An order 1 to that end is being issued in conjunction with this decision.

COMMISSIONER

1 PR606701.

Printed by authority of the Commonwealth Government Printer

The applicant, Ryan Fenech, sought relief from an unfair dismissal in the Federal Circuit and Family Court. The respondent, J a Grigson trading as J a Grigson, opposed the application. Fenech's application for relief from dismissal was unable to be processed due to a lack of contact, which prevented conciliation from proceeding. Consequently, the matter was referred for determination. Despite being advised that the matter would be dismissed if there was no contact, Fenech did not make any further attempts to communicate. Given the applicant's inaction, the court deemed the application abandoned and dismissed it.

The primary legal issue before the court was whether the application for relief from unfair dismissal should proceed, despite the applicant's failure to engage with the proceedings. The court needed to determine if the application could be maintained in the absence of any contact from the applicant after being advised of the potential consequences of non-engagement. The court also had to consider whether the application was effectively abandoned due to the applicant's continued lack of contact and communication.

The court held that the application was properly dismissed as it was effectively abandoned. The applicant had been given multiple opportunities to engage with the proceedings but had failed to do so. The court concluded that the applicant's inaction amounted to an abandonment of the application. Furthermore, the court found that the application could not proceed without the applicant's participation, and thus, dismissal was the appropriate outcome. The court's decision was based on the principle that a party must actively participate in the proceedings to have their application considered.

No orders were made as the application was dismissed.

Ryan Fenech v J a Grigson T/A J a Grigson

DECISION

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