Vicente Ricardo Hann-Barrera v Milan P. Radosavljevic (Trend Kitchens)

[2023] FWC 1361

[2023] FWC 1361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Vicente Ricardo Hann-Barrera
v

Milan P. Radosavljevic (Trend Kitchens)

(U2023/627)

DEPUTY PRESIDENT MASSON MELBOURNE, 9 JUNE 2023

Application for an unfair dismissal remedy – application dismissed pursuant to s 587.

1. On 25 January 2023, Mr Vicente Ricardo Hann-Barrera (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Milan P. Radosavljevic (Trend Kitchens) (the Respondent) was unfair.

1. The matter was allocated to my Chambers on 20 April 2023 for determination. Following allocation of the matter, directions were sent to the parties on 20 April 2023 and advised that the matter would be listed for hearing on 19 June 2023 and also provided dates for the filing of submissions, witness statements and material by the parties. The Applicant was required to file his material in relation to the merits of the application by close of business Friday, 5 May 2023.

1. The Applicant failed to file material in accordance with the directions issued following which my chambers wrote to the Applicant on 8 May 2023. The Applicant was advised that he was to file the relevant material by close of business 8 May 2023, failing which he would be directed to attend a non-compliance hearing.  The Applicant did not file any materials and as such a non-compliance hearing was listed for 10 May 2023.

1. The Applicant appeared on his own behalf at the non-compliance hearing on 10 May 2023. The Respondent was represented by Mr Radosavljevic, the business owner of Trend Kitchens. During the non-compliance hearing a basis for settling the matter was discussed, with agreement reached with the parties to vacate the directions, cancel the hearing date, and adjourn the matter for a two week period to enable settlement of the matter. The parties were advised during the non-compliance hearing that if the matter failed to settle within the two week period fresh directions and a notice of listing would be issued. The Applicant was also advised that if he failed to comply with any fresh directions that were issued it was likely his application for an unfair dismissal remedy may be dismissed.

1. On 24 May 2023 my chambers emailed the Applicant seeking advice as to whether agreement had been reached and if so, whether he wished to withdraw his application. The Applicant replied to that email advising that agreement had not been reached. Further correspondence was sent to the Applicant on 25 May 2023 seeking advice as to whether he wished to pursue his unfair dismissal application or withdraw. On 26 May 2023, the Applicant advised my chambers that he wished to pursue his application.

1. Revised directions were sent to the parties on 29 May 2023. The revised directions required the Applicant to file material by 5 June 2023. The applicant did not file his material in accordance with the revised directions.
   
   

2. On 6 June 2023, further correspondence was sent to the Applicant by my chambers advising that as he had failed to comply with the revised directions his unfair dismissal application was at risk of being dismissed pursuant to s. 587 of the Act. He was invited to file submissions by the close of business 8 June 2023 as to why his application should not be dismissed for want of prosecution. He was also advised in that correspondence that if he wished to be heard in relation to the potential dismissal of his application, he was required to notify my Chambers. No response was received from the Applicant.  

1. Turning now to whether the application should be dismissed the relevant section of the Act provides 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.”

1. 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).

1. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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