Bradley Geaney

[2015] FWC 5899

[2015] FWC 5899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Bradley Geaney
(AB2015/180)

COMMISSIONER ROBERTS SYDNEY, 26 AUGUST 2015

Application for an FWC order to stop alleged bullying – failure of applicant to prosecute his claim – application dismissed.

[1] This decision concerns an application lodged on 9 March 2015 by Mr Geaney pursuant to s.789 FC of the Fair Work Act 2009 (the Act) in relation to alleged bullying by a Mr P Genovese, an employee of Lend Lease Group T/A Lend Lease (Lend Lease).

[2] Mr Geaney’s application came before me in Sydney for conciliation on 8 April 2015. He was represented by Hall & Wilcox Lawyers. Mr Genovese was represented by Taylor & Scott Lawyers and Lend Lease by Herbert Smith Freehills.

[3] The 8 April conciliation did not resolve the matter and Hall & Wilcox, on behalf of Mr Geaney, requested that Mr Geaney be allowed until 22 April 2015 to consider his position and to advise whether he wished to proceed with his application.

[4] On 22 April 2015, Hall & Wilcox filed a notice ceasing to act for Mr Geaney and relayed a request that “… that his application be kept open for a further period of 4 weeks in order for him to obtain alternative representation and to consider his position further.” My Associate next contacted Mr Geaney by email on 20 May 2015 asking him to advise my chambers by 22 May if he wished to proceed with his application. On 26 May Mr Geaney emailed my Associate saying: “I would like if I could stand down the matter for a bit longer if possible, if not I would still like to have my matter heard. I just need a bit more time as I will possibly be presenting myself.” On 29 May, my then Acting Associate advised Mr Geaney that I had granted him a further 30 days to respond. I directed my Associate to hold the file open until 29 June. There was no response from Mr Geaney.

[5] On 20 July 2015, my Associate emailed Mr Geaney in the following terms:

“I refer to your s.789FC application lodged on 9 March 2015, which was last before Commissioner Roberts on 8 April 2015.
We wrote to you on 22 May 2015 requesting that you advise whether you wish to proceed with your application.
We wrote again on 29 May 2015 extending time for a further 30 days for you to respond.
To date you have failed to advise us of your intentions.
Commissioner Roberts will close this file for want of prosecution unless you show cause, by 3 August 2015, why this should not occur.”

[6] No response has been received from Mr Geaney to the above email.

[7] Section 587 of the Act provides:

“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.”

[8] In the circumstances, Mr Geaney’s application for an order to stop bullying is dismissed pursuant to s.587(3)(a) of the Act for want of prosecution.

COMMISSIONER

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