Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

[1] This matter involves an application made by Mr Richard Bosworth (the Applicant) under section 365 of the Fair Work Act 2009 (the Act) to deal with alleged contraventions involving dismissal. The respondent is Coles Supermarkets Australia Pty Ltd (the Respondent).

[2] The Respondent objects to the application on the ground that the Applicant has not been dismissed by the Respondent. The Respondent submits that the Applicant resigned from his employment voluntarily, at a time when he was on a period of personal leave.

[3] The application was the subject of a conference with a Fair Work Commission staff

conciliator however the matter was not resolved and so was referred to me for arbitration to determine whether the Applicant had been dismissed.

[4] Correspondence was sent to the parties on 29 March 2022 notifying them of a hearing and providing specific directions to each party. This was sent to the Applicant by email. The Applicant was directed to provide written materials in response to the Respondent's objection by 4 May 2022. Nothing was received from the Applicant by this date.

• [5] A follow up letter was emailed to the Applicant on 5 May 2022 regarding his failure to comply with the Fair Work Commission's direction and directing that his materials be filed and served on the Respondent by 4:00pm on 9 May 2022. The letter advised a further failure to comply with the Fair Work Commission's direction would be grounds for the application to be dismissed without further notice.

• [6] As at the date of this decision the Applicant has not filed any materials as directed nor

• [7] Section 577 of the Act obliges the Fair Work Commission to perform its functions and

exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary

technicalities and is open and transparent and promotes harmonious and cooperative workplace

• [8] Section 587(3) of the Act empowers the Fair Work Commission to dismiss an application on its own initiative.

• [9] In this case the Applicant has repeatedly failed to comply with the Fair Work Commission's directions and was on notice that non-compliance would be grounds for the application to be dismissed.

• [10] Consequently, my decision is that this application to deal with contraventions involving dismissal should now dismissed on the initiative of the Fair Work Commission under section 587(3) of the Act.

• [11] An Order [PR741469] to this effect will now be issued

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