Shannon Worthington v WTH Pty Ltd t/as Avis Australia

[2013] FWC 8946

[2013] FWC 8946

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Shannon Worthington
v
WTH Pty Ltd t/as Avis Australia
(C2013/5323)

COMMISSIONER BISSETT MELBOURNE, 28 NOVEMBER 2013

Application to deal with contraventions involving dismissal - application dismissed for want of prosecution.

[1] Mr Shannon Worthington (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (the Act) to deal with contravention involving dismissal against WTH Pty Ltd T/A Avis Australia (the Respondent).

[2] On 3 September 2013 the parties were advised that a conference would be held with respect to the application on 9:30 am 2 October 2013 in Brisbane and parties outside of Brisbane could attend via telephone. On 29 September 2013, the Applicant emailed the Commission indicating he wished to attend the conference by phone. The email included the following:

...I have a conference this Wednesday 2nd October 2013 @ 9:30am, however I will not be able to attend in person, though I will be available via phone on my mobile which is as follows...

[3] On 2 October 2013 my chambers contacted the Applicant for the conference on the number provided three times and none of the calls were answered. A message was left on the Applicant’s voicemail for the Applicant to return the call as soon as possible. The Applicant returned the phone call at 10:40 am stating that he believed the conference was on Thursday 3 October 2013. During this phone call he indicated that he wished to pursue the matter and requested that it be rescheduled.

[4] The matter was relisted and a telephone conference was conducted on 17 October 2013. During the conference the Applicant indicated that he had not received the Employer’s Response (Form 8A). The Respondent agreed to provide a copy to him, which it did by email that day. The Applicant was advised that after he received the Form 8A he was to contact my chambers by no later than 25 October 2013 to indicate whether or not he wished to pursue the application.

[5] On 25 October 2013 my associate phoned the Applicant to ask whether he intended to pursue the matter, and reminded him that he was to advise the Commission that day if he wished to pursue the matter. No indication was received.

[6] On 29 October 2013 my associate emailed the Applicant reminding him that he was to advise the Commission by 25 October 2013 if he wanted to pursue the matter and that he had not done so. In the email the Applicant was told that if he failed to advise the Commission of his intentions regarding his application by 1 November 2013 the application may be dismissed. No advice has been received from the Applicant.

The Act

[7] Section 587 of the Act gives power to the Commission to dismiss an application. The basis for dismissing an application is not limited to those matters specified in s.587(1)(a)-(c).

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.

Conclusion

[8] Given the Applicant has failed to communicate his intentions in regard to his application I hereby dismiss the application for want of prosecution. In doing so I have taken into account the advice to the Applicant that a failure to communicate his intentions may result in his application being dismissed.

[9] An order to this effect will be issued.

COMMISSIONER

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