Warwick Jackson v Amway Australia T/A Amway

[2014] FWC 493

[2014] FWC 493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warwick Jackson
v
Amway Australia T/A Amway
(U2013/11740)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 JANUARY 2014

Application for relief from unfair dismissal dismissed.

[1] On 19 July 2013, Warwick Jackson made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Jackson’s employment had been terminated by Amway Australia T/A Amway (Amway) on 30 June 2013.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Jackson was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 16 October 2013 in relation to his application. In addition to material relating to the jurisdictional objection, by 5:00pm on 11 November 2013.

[4] Mr Jackson did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Gooley on 8 November 2013.

[5] Mr Jackson did not attend the non compliance hearing. Amway made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Jackson had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Rules 2009 and accepted Amway’s oral application.

[6] On 8 November 2013, Mr Jackson was sent correspondence informing him of the Respondent’s s.399A application. Mr Jackson was directed to file submissions and other documentary material in respect of Amway’s application by close of business, on 22 November 2013. Mr Jackson was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Jackson, by email on 21 November 2013, advised the Commission that he no longer wanted to proceed with his application. Mr Jackson was reminded of the formalities to discontinue an application and was sent a Form F50 - Notice of Discontinuance.

[8] To date the Commission has not received a completed Form F50.

[9] Having regard to the material before me, I am satisfied that given Mr Jackson’s advice, that he no longer wanted to prosecute his application, he intended to discontinue his application but has not filed a Form F50.

[10] Section 588 of the Act provides:

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

[11] I have decided to waive compliance with the Fair Work Rules 2010 (the Rules).

[12] Rule 4 of the Rules provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Mr Jackson file and serve a Form F50 as I am satisfied that Mr Jackson has discontinued his application.

[13] The application is therefore, discontinued.

[14] It is therefore unnecessary to consider Amway’s s.399A application and it is dismissed.

DEPUTY PRESIDENT

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