William John Marks v Frozens Logistics
[2010] FWA 512
•29 JANUARY 2010
[2010] FWA 512 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
v
Frozens Logistics
(C2009/11165)
COMMISSIONER LARKIN | SYDNEY, 29 JANUARY 2010 |
Application to deal with contraventions involving dismissal – application dismissed.
[1] On 27 November 2009 Mr William John Marks (the applicant) lodged an application pursuant to s. 365 of the Fair Work Act2009 (the Act) seeking that Fair Work Australia (FWA) deal with a general protections dispute. The grounds of the application were stated to be:
“I was discriminated against for asking manager to fix faulty trucks that I was driving. Incorrect pays, rest breaks (work through to get job done). etc. (sic)
I feel I was terminated because I am a member of a union (TWU) and tried to consult with my employer/ manager about my rights in the workplace (this workplace is a non union workplace)”
[2] On 4 December 2009 a notice of listing was forwarded to the parties advising the matter was listed for conference at 9am on Thursday, 10 December 2009.
[3] On 9 December 2009 the applicant made telephone contact with my Associate and informed her that he was unable to attend the conference scheduled for 10 December 2009. The listing was cancelled.
[4] On 10 December 2009 my Associate made telephone contact with the applicant requesting that he submit written reasons for the adjournment request. The applicant responded that he would do so.
[5] On 15 December 2009 my Associate again made telephone contact with the applicant requesting that he submit written reasons for the adjournment request and available dates for the re-listing of a conference. The applicant responded that he would do so.
[6] On 21 December 2009 my Associate wrote to the applicant in the following terms:
“I refer to your application to FWA which as listed for conference for 9am Thursday 10 December 2009 and adjourned at your request on 9 December 2009. You have been requested to provide your adjournment request in writing but have not done so.
Please provide your request for the adjournment in writing and provide your availability for January for re-listing the conference. This material should be filed in FWA and copied to the other party by no later than close of business 7 January 2010.”
[7] On 12 January 2010 my Associate attempted to make telephone contact with the applicant and was unsuccessful.
[8] On 14 January 2010 my Associate made telephone contact with the applicant. The applicant advised my Associate that he would make a decision about whether he wished to press his application by 15 January 2010.
[9] On 18 January 2010 my Associate attempted to make telephone contact with the applicant and was unsuccessful. My Associate wrote to the applicant in the following terms:
“C2009/11165 – Marks v Frozen Logistics Pty Ltd
I refer to the above application which was listed for conference for 9am Thursday 10 December 2009 and adjourned at your request on 9 December 2009.
You were requested to provide reasons for your adjournment request in writing by 7 January 2010 but did not do so.
You did not respond to a voicemail message left on your mobile on 12 January 2010.
In our telephone conversation on 14 January 2010, you indicated that you would make a decision as to whether you wished to press your application by 15 January 2010.
If you wish to discontinue your application, please complete the enclosed notice of discontinuance and return it using the enclosed express post envelope.
Please do not hesitate to contact me if you have any enquiries.”
[10] To date, the applicant has not responded to the correspondence.
[11] Section 587 of the Act states:
“587 Dismissing applications
(1) Without limiting when FWA may dismiss an application, FWA 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), FWA 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) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[12] The applicant has been given reasonable notice and a reasonable opportunity to be heard. He has chosen not to avail himself of that opportunity. The applicant’s application under s.365 is therefore dismissed pursuant to s.583(3)(a) of the Act.
COMMISSIONER
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