Timothy Lawrence v H2O Broad Water Apartments T/A Kramttam Pty Ltd

[2017] FWC 190

[2017] FWC 190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Lawrence
v
H2O Broad Water Apartments T/A Kramttam Pty Ltd
(U2016/12613)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 18 October 2016, Mr Timothy Lawrence made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The matter was listed for conciliation on 21 November 2016, however on 19 October 2016, H20 Broad Water Apartments indicated it would not participate and wanted the matter to proceed to hearing.

[3] On 24 October 2016, directions were issued and the matter was listed for hearing. Mr Lawrence was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 November 2016.

[4] On 15 November 2016, as Mr Lawrence had not filed any material, a telephone call was made to him, however this was unsuccessful and a voice mail message was left. The following day, correspondence was sent to Mr Lawrence confirming no material had been filed and that the matter would be listed for non-compliance hearing on 2 December 2016 should he not contact the Commission. On the same day, a text message was also sent to Mr Lawrence asking that he telephone the Commission.

[5] On 23 November 2016, a Notice of Listing was sent to Mr Lawrence advising the matter had been set down for non-compliance hearing on 2 December 2016. A text message was also sent to Mr Lawrence confirming same.

[6] On 30 November 2016, a further attempt to contact Mr Lawrence by telephone was made and a voice mail message was left asking that he contact the Commission.

[7] Mr Lawrence and H20 Broad Water Apartments did not attend the non-compliance hearing before Deputy President Kovacic on 2 December 2016. Consequently, on 2 December 2016, correspondence was sent to Mr Lawrence directing that an outline of submissions and any witness statements he intended to rely upon be filed by no later than close of business on 7 December 2016. The correspondence noted that if no material was filed by close of business on 7 December 2016, it would be assumed Mr Lawrence no longer wished to pursue the application.

[8] To date, Mr Lawrence has not filed an outline of submissions or any witness statements in the Commission.

[9] Section 587 of the 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

(c) the application has no reasonable prospects of success.


(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.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[11] Mr Lawrence has not demonstrated a willingness to prosecute his case since the directions were issued on 24 October 2016 and nor has he engaged in the non-compliance hearing and subsequent direction to file submissions. I have formed the view Mr Lawrence no longer wishes to pursue his application. In all the circumstances, I have determined to dismiss the application, on my own initiative, pursuant to s.587(3)(a) of the Act for want of prosecution. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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