William Ewing v Blake Entertainment

[2020] FWC 2780

[2020] FWC 2780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

William Ewing
v
Blake Entertainment
(C2020/2171)

COMMISSIONER BISSETT MELBOURNE, 29 MAY 2020

Alleged dispute about any matters arising under the modern award and the NES; [s146] – jurisdiction – applicant dismissed prior to application being made - application dismissed.

[1] On 7 April 2020 Mr William Ewing (Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with an alleged dispute with Blake Entertainment (Respondent).

[2] In his Form F10 application form the Applicant said he received a letter of termination on 19 March 2020.

[3] The Commission telephoned the Applicant on 7 April 2020 advising that on the face of the application it does not appear that the Commission has jurisdiction to deal with the matter. Later that day the Commission sent email correspondence to the Applicant’s nominated email address advising that if wished to discontinue his application he should complete a Form F50 – Notice of discontinuance. No response was received.

[4] On 4 May 2020 the Commission sent email correspondence to the Applicant inviting him to withdraw his application.

[5] On 5 May 2020 the Applicant wrote to the Commission advising as follows:

I am of the belief that the fair work commission are in fact able to deal with this matter.

I will not be withdrawing my application at this stage.

[6] Later that day the Applicant sent a further email which said:

This is a matter I wish to pursue.

[7] Following receipt of the Applicant’s correspondence, the Commission contacted the Applicant by telephone on 5 May 2020 and explained that the Commission does not have jurisdiction to deal with the matter. The Applicant again advised that he wanted to proceed with the application.

[8] On 6 May 2020 Directions were issued to the parties. The Directions required the Applicant to file submissions in support of his application that the Commission has jurisdiction to deal with the application by 5.00 pm on 13 May 2020. No submissions were received from the Applicant by the due date.

[9] On 15 May 2020 the Commission contacted the Applicant by telephone to discuss his late submissions. The Applicant apologised for not having filed his submissions and said he would file them the next day. No submissions were received from the Applicant.

[10] On 20 May 2020 the Respondent wrote to the Commission submitting that due to the Applicant’s failure to comply with the Directions the matter should be dismissed.

[11] On 22 May 2020 a Notice of Listing was sent to the parties listing the matter for Mention on 28 May 2020. The parties were directed to advise the Commission by no later than 12.00 pm on 27 May 2020 of the appearances and the telephone number on which they could be contacted on. The Applicant did not respond.

[12] Following the non-response from the Applicant on 27 May 2020 the Commission sent email correspondence to the Applicant’s nominated email address advising him of the Mention scheduled for the following day and requesting he provide contact details urgently. No response was received.

[13] Prior to the Mention on 28 May 2020, the Commission attempted to contact the Applicant on his nominated telephone number to ascertain his preferred contact details for the Mention. The Applicant did not answer the call. A voicemail message was left asking him to contact the Commission urgently. The Applicant did not contact the Commission.

[14] The Mention proceeded before me on 28 May 2020. Despite two attempts to contact the Applicant on his nominated telephone number, he did not attend. I advised the Respondent that due to Applicant’s failure to file submissions and the apparent lack of the Commission’s jurisdiction to deal with the matter the application will be dismissed.

[15] In considering the provisions of the FW Act, I am satisfied that the Commission has no jurisdiction to determine the Applicant’s application to deal with a dispute as his employment was terminated before he made the application.

[16] The Applicant was notified of the preliminary view that the Commission lacks jurisdiction to deal with the matter and was invited to make submissions addressing this issue. To date, the Applicant has not filed submissions and despite repeated requests for him to contact the Commission he has failed to do so.

[17] Section 587(1) of the FW Act sets out why and how the Commission may dismiss an application. It states 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.

[18] I am satisfied that at the time the application was made the Applicant’s employment relationship with the Respondent had ended. In the circumstances, I find that the Commission has no jurisdiction to deal the dispute under s.739 of the FW Act.

[19] Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 giving effect to this decision will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR719702>

 1   PR719744.