Adrian Balmes v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne

[2022] FWC 626

[2022] FWC 626

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Adrian Balmes
v

Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne

(U2021/11764)

COMMISSIONER BISSETT MELBOURNE, 23 MARCH 2022

Application for an unfair dismissal remedy – application dismissed.

1. On 16 December 2021 Mr Adrian Balmes (Applicant) made an application to the Fair Work Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant advised he was employed by Metro Trains Melbourne Pty Ltd T/A Metro Trains (Respondent).

1. A conciliation conference between the parties was held before a Commission staff conciliator on 9 February 2022.  The matter did not settle at conciliation and was referred to me for Arbitration.

1. On 22 February 2022 my chambers sent a Notice of Listing to the parties advising that the matter was listed for a case management conference/mention (Mention) before me on 8 March 2022.

1. The Mention proceeded on 8 March 2022 however there was no appearance by or on behalf of the Applicant. A number of attempts were made by my Associate to contact the Applicant on his nominated telephone number prior to the commencement of the Mention however the Applicant did not answer the calls. Voicemail messages were left requesting a return call.  The Applicant did not respond.

1. Later that day my chambers sent email correspondence to the Applicant’s nominated email address regarding his failure to attend the Mention and requesting he advise as soon as possible if he intends to proceed with the application.

1. As no response was received, on 10 March 2022 my chambers again sent email correspondence to the Applicant’s nominated email address advising that, given his failure to respond to the Commission's correspondence and telephone calls, the Commission is now considering dismissing his application under s.587(2) of the FW Act 2009. The correspondence requested the Applicant advise if he wished to proceed with the application by no later than 17 March 2022. The correspondence also warned that if the Applicant does not provide a response by this time the Commissioner intends to make a decision dismissing the application.

1. To date there has been no communication from the Applicant and no action has been taken by him to advise of his intentions to proceed with this application.

1. Section 587 of the FW Act provides 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.

(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. In light of the Applicant’s failure to respond, I am satisfied that the Applicant does not intend to pursue his s.394 application.

1. Accordingly, I have decided to dismiss the application, on my own initiative, pursuant to s.587(1) of the FW Act. An order[1] to this effect will be issued with this decision

COMMISSIONER

[1] PR739521

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<PR739520>