Sandro Simoes Da Costa E Silva v Territory Powersports Group Pty Ltd

[2017] FWC 5567

[2017] FWC 5567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sandro Simoes Da Costa E Silva
v
Territory Powersports Group Pty Ltd
(U2017/9629)

COMMISSIONER BISSETT MELBOURNE, 26 OCTOBER 2017

Application for an unfair dismissal remedy - dismissal under s.587 at the Commission’s initiative.

Background

[1] On 5 September 2017, Mr Sandro Simoes Da Costa E Silva made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Da Costa E Silva was employed by Territory Powersports Group Pty Ltd. His employment was terminated on 4 September 2017.

[2] A conciliation conference was listed for 29 September 2017 before a Commission conciliator. The conciliation did not proceed as the Applicant was not able to be contacted at the listed time. The Applicant did not respond to the correspondence sent by the conciliator to him on the same day following his failure to attend. As such the matter was referred for arbitration.

[3] On 4 October 2017 directions were issued by the Commission requiring Mr Da Costa E Silva to file and serve his submissions, witness statements and other documentary material with respect to his application by noon on Friday 13 October 2017. Mr Da Costa E Silva failed to comply with this direction.

[4] The Commission wrote to Mr Da Costa E Silva on 24 October 2017 requiring him to advise the Commission by noon on Thursday 26 October 2017 if he intended to file any material in support of his application and that, should he fail to contact the Commission, the Commission will consider dismissing his application without any further contact with him. Mr Da Costa E Silva once again failed to respond to the Commission’s correspondence.

[5] Mr Da Costa E Silva has:

(a) failed to attend the conciliation on 29 September;

(b) failed to comply with directions; and

(c) failed to respond to correspondence from the Commission.

[6] In light of Mr Da Costa E Silva’s failure to respond, I am satisfied that Mr Da Costa E Silva does not intend to pursue his s.394 application.

Legislation

[7] Section 587 of the FW Act states 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.

Consideration

[8] Section 587(3) of the FW Act allows the Commission to dismiss an application on the Commission’s own initiative.

[9] Section 587(1) of the FW Act does not operate to limit the grounds on which the Commission may dismiss a matter.

[10] Mr Da Costa E Silva has been provided with opportunities to respond to directions of the Commission. He has failed to do so on each of these occasions. Attempts to contact Mr Da Costa E Silva via email have been unsuccessful.

[11] After considering all of the circumstances I have decided that Mr Da Costa E Silva’s application should be dismissed pursuant to s.587 of the FW Act because of a failure of Mr Da Costa E Silva to comply with the directions of the Commission.

[12] The application for unfair dismissal remedy is therefore dismissed. An order 1 to this effect will be issued with this decision

COMMISSIONER

 1   PR597181.

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<Price code A, PR597138>