Tristan Taylor v Coles Supermarkets Australia Pty Ltd

[2021] FWC 6229

[2021] FWC 6229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tristan Taylor
v
Coles Supermarkets Australia Pty Ltd
(U2020/5962)

VICE PRESIDENT CATANZARITI SYDNEY, 28 OCTOBER 2021

Application for an unfair dismissal remedy

[1] On 30 April 2020, Tristan Taylor lodged an application for an unfair dismissal remedy with the Fair Work Commission(the Commission) under section 394 of the Fair Work Act 2009 (the Act) with respect to his employment with Coles Supermarkets Australia Pty Ltd.

[2] On 14 May 2020, the matter was listed for a conciliation to be held on 27 May 2020 before a Commission staff conciliator.

[3] Mr Taylor’s then representative, Tristan Jantzen, advised the Commission on 22 May 2020 that Mr Taylor was in prison. Mr Jantzen further advised the Commission he would ring back.

[4] On 26 May 2020, the conciliation before a staff conciliator listed for 27 May 2020 was cancelled on the basis Mr Taylor was in prison.

[5] From 26 May 2020 to 12 August 2020, various attempts were made to contact Mr Jantzen to find out further information regarding Mr Taylor’s circumstances. My chambers found out the exact correctional facility where Mr Taylor was located but was advised by Mr Jantzen that he was no longer acting for Mr Taylor and the team who were dealing with Mr Taylor did not have any information regarding Mr Taylor’s unfair dismissal application nor the authority to discuss it with the Commission or act on his behalf in relation to it.

[6] On 27 August 2020, my chambers sent correspondence to Mr Taylor asking him whether he wished to continue with his application.

[7] Mr Taylor rang my chambers on 17 September 2020 to advise he wished to continue with his application and his sister, Michelle Williams, was his new representative. Mr Taylor was advised by my chambers the Commission would require Ms Williams’ contact details in order to be able to communicate with her but Mr Taylor did not have her contact information. Mr Taylor agreed to ring back our chambers while my Associate contacted me to seek instructions on how I wanted to proceed with the matter – Mr Taylor did not ring back.

[8] On 20 November 2020, my chambers sent further correspondence to Mr Taylor by express post advising him if he wished to proceed with his application, he should contact our chambers to let us know he wants to continue and to provide us with Ms Williams’ contact details. My chambers alternatively suggested that Mr Taylor could let Ms Williams know he wants to continue with his application and for her to contact my chambers to let us know her contact details. A response was sought from Mr Taylor or Ms Williams by 4:00pm on 11 December 2020. No response was received from Mr Taylor.

[9] On 20 August 2021, my chambers sent correspondence to Mr Taylor noting we had not received a response to our correspondence dated 20 November 2020. He was advised that in the absence of a reply, his application would be dismissed.

[10] Since 20 November 2020, Mr Taylor has not responded to any of the Commission’s correspondence.

[11] 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), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[12] The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[13] In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[14] An order to that effect will issue with this decision.

VICE PRESIDENT

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