Stuart Russell v BMI Group Pty Ltd T/A BCC Crushing
[2017] FWCFB 6212
•24 NOVEMBER 2017
| [2017] FWCFB 6212 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Stuart Russell
v
BMI Group Pty Ltd T/A BCC Crushing
(C2017/5259)
VICE PRESIDENT CATANZARITI | SYDNEY, 24 NOVEMBER 2017 |
Appeal against decision [2017] FWC 3431 of Commissioner Hunt at Brisbane on 1 September 2017 in matter number U2017/1209.
[1] On 1 September 2017, Commissioner Hunt issued a Decision, 1 which found that the employment of Mr Stuart Russell (Appellant) did not come to an end pursuant to s.386(1)(a) or (b) of the Fair Work Act 2009 (Cth) (Act). As a consequence, the Commissioner found there had been no dismissal for the purposes s.385 of the Act; upheld the jurisdictional objection raised by BMI Group Pty Ltd (Respondent); and dismissed the Appellant’s application for relief under s.394 of the Act.
[2] On 21 September 2017, the Appellant lodged a Notice of Appeal, appealing the Decision of Commissioner Hunt. In accordance with this application, the chambers of Vice President Catanzariti sent a Notice of Listing and Directions to the parties on 25 September 2017. The Appellant did not comply with the Directions and we did not receive an appeal book, nor any submissions in relation to this matter.
[3] On 10 October 2017, the chambers of Vice President Catanzariti attempted to contact the Appellant on multiple occasions, but were unsuccessful in doing so. On 11 October 2017, Ms Julie Brissy, on behalf of the Appellant, sent correspondence to the Fair Work Commission (FWC) requesting an extension of time, noting that the submissions were due on 9 October 2017. On the same day, correspondence was sent from the FWC in reply to Ms Brissy, the Appellant and the Respondent noting that, as the matter was listed for permission to appeal and the merits of the appeal, the request for an extension of time may cause problems with the scheduled hearing date. Accordingly, the Appellant was requested to advise when submissions could be filed by close of business on 11 October 2017. In the same correspondence, it was also noted that, if the Appellant failed to reply, the matter would be listed before Vice President Catanzariti for teleconference to consider the further conduct of the matter.
[4] The Appellant failed to reply and, accordingly, the matter was listed for teleconference on 16 October 2017. The Respondent attended this teleconference, however, after numerous attempts to contact the Appellant, the Vice President was unable to contact the Appellant.
[5] As such, the Vice President’s chambers sent correspondence to the parties on 16 October 2017 noting the Appellant’s failure to comply with Directions and to attend the teleconference. That correspondence also requested the Appellant to advise the Vice President’s chambers whether he intended to file submissions and whether he wished to continue the appeal by close of business on 18 October 2017.
[6] Again, no response was received. On 19 October 2017, the Vice President’s chambers sent further correspondence to the parties and requested that the Appellant indicate whether he wished to pursue his appeal and file submissions by close of business 23 October 2017. It was indicated to the Appellant that should he wish to pursue his appeal, the matter would be relisted. However, if the Appellant failed to reply, the appeal would be dismissed.
[7] Attempts were again made to call the Appellant on 25 October 2017, which were unsuccessful. A further and final opportunity was given to the Appellant by way of correspondence dated 26 October 2017. The Vice President’s chambers requested that the Appellant indicate whether he wished to pursue his appeal and file submissions by close of business on 1 November 2017. In the event that the Appellant did not reply, it was indicated to the parties that the matter would be referred to the Full Bench to consider dismissing the appeal.
[8] Once again, no response was received from the Appellant within the allocated timeframe. Accordingly, we now turn to consider whether this application should be dismissed.
[9] Sections 399A and 587 of the Act outline the circumstances in which the FWC can dismiss applications.
[10] Section 399A of the Act states:
‘Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.’
[11] Section 587 of the Act provides that:
‘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.’
[12] Noting the failure of the Appellant to comply with Directions; the failure to attend the teleconference on 16 October 2017; and consistent failure to respond to phone calls and emails from the FWC, we are of the view that this application must be dismissed pursuant to ss.399A and 587 of the Act.
Conclusion
[13] The application is dismissed pursuant to ss.399A and 587 of the Act.
VICE PRESIDENT
1 [2017] FWC 3431.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR598036>
0
1
0