Zachary Vlassco v Optimus Shine Truck Wash Pty Ltd

[2023] FWC 521

[2023] FWC 521

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Zachary Vlassco
v

Optimus Shine Truck Wash Pty Ltd

(U2023/182)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 3 MARCH 2023

Application for an unfair dismissal remedy – applicant failed to engage in the process and did not participate in a directions conference or otherwise advance any case - no submissions or contact from applicant following correspondence from the Commission – applicant on notice as to implication of not advancing a case - taken to be no longer being pursued – no reasonable prospects of success – unfair dismissal claim dismissed – order issued.

1. On 9 January 2023, Mr Zachary Vlassco (the Applicant), made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). The application contended that Mr Vlassco’s employment had been unfairly terminated by Optimus Shine Truck Wash Pty Ltd (Respondent) on 16 December 2022. The Respondent contests the application via the filing of a Form F3 – Employer Response form.

1. By way of background, the application was listed for conciliation before a Commission Staff Conciliator on 3 February 2023 but this did not proceed on account of the Conciliator being unable to contact Mr Vlassco on the telephone number provided in his application, which was confirmed as correct by the Respondent. The Conciliator made 3 attempts to contact Mr Vlassco before considering that conciliation could not take place at the time. The Respondent sought that the matter be progressed straight to formal determination without a second conciliation being attempted at a later date. The application was subsequently referred to this arm of the Commission for hearing and determination.

1. A pre-arbitration directions conference was listed for 21 February 2023; however, on this occasion there was no participation by either the Applicant or the Respondent. My Chambers sent a reminder SMS in advance of the conference to both parties on the mobile phone numbers contained in the Form F2 and Form F3 documents to ensure they were aware of the directions conference listing.

1. At the conclusion of the directions conference, the Commission wrote to the Applicant, with a copy being provided to the Respondent, the relevant parts of which are set out below:

“… …

The above matter was listed for a directions conference by telephone on Tuesday 21 February 2023 before Deputy President Hampton. There was no participation by you or anyone on your behalf.

Despite various attempts to contact you via mobile telephone, you have not contacted the Commission, nor have you responded to the voice mail messages left.

The Commission is now seeking confirmation by email as to whether you intend to proceed with your unfair dismissal application.

Should the Commission not hear from you or anyone on your behalf by close of business Wednesday 1 March 2023, the application will be taken to be abandoned and will be dismissed without further notice or hearing.

… ...”

1. The above correspondence was provided to Mr Vlassco using the contact details supplied with the Form F2 and which had previously (successfully) been used by the Commission to contact him.

1. Mr Vlassco did not contact the Commission to advise his intention to proceed by the specified date and no contact has subsequently been made by him or anyone on his behalf. This remains the case as at the date of this decision.

1. Section 587 of the FW Act sets out the basis upon which the FWC may dismiss an application:

“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. This is not an application that falls within the limiting scope of s.587(2) of the FW Act.

1. Section 587 is an additional power to dismiss applications,[1] which requires that certain circumstances be found as a precondition,[2] and in which case, a discretion[3] arises. A finding that the precondition exists, informs the exercise of any discretion that arises, and that discretion must be assessed in the context of each particular case and is not to be exercised lightly.[4] It may be undertaken by the Commission on its own initiative.[5]

1. I am satisfied that despite being properly advised of the various opportunities to advance his case, Mr Vlassco has failed to take any further actions to engage with the Commission following an email sent to the Commission Case Management Team on 17 January 2023. More relevantly, Mr Vlassco has not taken the opportunity to advance his case despite the opportunities provided since its allocation to this arm of the Commission for hearing and determination. Further, the Applicant has not set out a case that is capable of succeeding. That is, a contested case of this kind cannot succeed in the absence of evidence and materials to support the contended basis of the application. The opportunities provided have been multiple and reasonable and Mr Vlassco was expressly put on notice that a failure to engage with the Commission by the due date would lead to the dismissal of the application without further notice or hearing. The Commission must also take account of the interests of the Respondent in its case management of the application.

1. I find that the circumstances of s.587(1)(c) of the FW Act have been met. I am also satisfied that I should exercise my discretion to dismiss the unfair dismissal matter. In that regard, I observe that Mr Vlassco has, in effect, abandoned his application and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter.

1. As a result, after considering the materials before the Commission and the circumstances of this matter, it is appropriate that Mr Vlassco’s application for an unfair dismissal remedy be dismissed. An order[6] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Conference details:

2023
February 21
By Telephone.

[1] Section 587(1).

[2] Section 587(1)(a), (b) or (c).

[3] Section 587(1) provides that the Commission may dismiss the application. See more generally Tunsted v Busways North Coast Pty Ltd[2020] FWCFB 25 at [27].

[4] Tunsted v Busways North Coast Pty Ltd[2020] FWCFB 25 at [34].

[5] Section 587(3).

[6] PR751364.

Printed by authority of the Commonwealth Government Printer

<PR751350>