Ryan Whitfield v Ryde Energy Pty. Ltd
[2025] FWC 465
•17 FEBRUARY 2025
| [2025] FWC 465 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ryan Whitfield
v
Ryde Energy Pty. Ltd.
(U2024/12630)
| COMMISSIONER HUNT | BRISBANE, 17 FEBRUARY 2025 |
Application for unfair dismissal remedy
On 22 October 2024, Mr Ryan Whitfield (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with Ryde Energy Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.
The matter was listed for a staff conciliation on 20 November 2024. At the conference’s commencement, the Applicant’s representative advised she had been contacted by the Applicant 10 minutes prior to the conference’s commencement and informed he was unwell and unable to participate in the conference. The Applicant’s representative sought for the matter to be set down for a further conciliation. The Respondent was of the view the Applicant would be unlikely to appear at a rescheduled conference, and that if the matter were to proceed, the Respondent’s jurisdictional objection that there has not been a dismissal ought to be dealt with first.
On 26 November 2024, the Commission wrote to the Respondent seeking its consent to participate in a second conference, or alternatively, whether it wished for the matter to proceed to a commission member. No response was received from the Respondent. The matter was allocated to me on 14 January 2025.
On 16 January 2025, I issued directions requiring the parties to file material by certain dates and notified the parties of a telephone conference to be convened on 30 January 2025. On 29 January 2025, my chambers received a Form F54 from the Applicant’s representative, giving notice of its withdrawal as the Applicant’s representative.
The Applicant attended the telephone conference on 30 January 2025. At the conference, the Applicant indicated that he would be in a position to file material in accordance with the directions, that is, by 4:00pm AEST on 4 February 2025.
The Applicant did not file material, as directed. Correspondence was issued by my chambers, directing the Applicant to urgently advise if he wished to pursue his application and if so, when he would file his witness material. No response was received from the Applicant.
On 10 February 2025, I listed the matter for a non-compliance hearing by video using Microsoft Teams to take place at 11:30am on 12 February 2025. I also caused my chambers to issue correspondence noting the parties were required to attend, and that if the Applicant failed to attend, I would consider dismissing the application pursuant to s.587 of the Act.
After several attempts by my chambers to contact the Applicant, the Applicant attended the non-compliance hearing on 12 February 2025. At the hearing, the Applicant gave evidence that he did not file his material because he considered that he would not be successful in his application. Notwithstanding this, the Applicant gave an undertaking that he would file material if he were granted a short extension.
I amended the directions to allow the Applicant to file material by no later than 4:00pm on 13 February 2025. I cautioned the Applicant at the non-compliance hearing that if he did not comply with the amended directions, I would likely dismiss his application.
To date, my chambers is not in receipt of any material lodged by the Applicant in compliance with my directions.
Section 587 of the Act provides as follows:
“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.”
After considering the numerous attempts to engage the Applicant in his application to the Commission and his failure to comply with Directions issued by me, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to s.587(3)(a) of the Act. The Applicant has demonstrated an unwillingness to prosecute his own application and consequently I find that the application has no reasonable prospects of success.
An Order to this effect will be issued with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR784418>
0
0
0