Cain Mulholland v Nilsen (NSW) Pty. Ltd

[2023] FWC 2248

[2023] FWC 2248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Cain Mulholland
v

Nilsen (NSW) Pty. Ltd.

(U2023/6580)

DEPUTY PRESIDENT WRIGHT SYDNEY, 5 SEPTEMBER 2023

Application for an unfair dismissal remedy - application dismissed for want of prosecution

1. On 19 July 2023, Mr Cain Mulholland (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy alleging that he had been unfairly dismissed from his employment with Nilsen (NSW) Pty. Ltd (Respondent).

1. On 27 July 2023, the Respondent filed a Form F3 – Employer response (the response).

1. The matter was listed for a conciliation before a Commission staff member on 17 August 2023. The Applicant did not respond to attempts to contact him in order to confirm his telephone number prior to the conciliation. He did not appear at the conciliation and did not respond to five attempts to contact him by telephone at the time of the conciliation.

1. The matter was then allocated to my Chambers. My Chambers sent the following email to the parties at 12:37pm on 28 August 2023:

Dear parties,

I refer to the above matter.

This matter has been allocated to Deputy President Wright, following the Applicant’s failure to attend the Conciliation Conference scheduled on 17 August 2023.

The Applicant is required to advise whether:

1.He wishes to proceed to a hearing of the matter; or

2.He wishes to discontinue the matter

by no later than 4:00pm on Tuesday, 29 August 2023.

In the absence of a response the Commission may consider dismissing the application pursuant to s.587 of the Fair Work Act 2009 (Cth), which will result in a publicly accessible decision being issued.

Kind regards,

1. The Applicant did not respond to this email as directed. My Chambers then sent the following email at 1:05pm on 30 August 2023:

Dear parties,

I refer to the above matter and the below correspondence.

In the absence of a response to the below email, the matter will be listed for a hearing regarding dismissing the application pursuant to s.587 of the Fair Work Act 2009 (Cth) at 10:00am on Tuesday, 5 September 2023.

The Applicant is directed to attend this hearing and make submissions regarding dismissing the application.

The Respondent may choose to attend the hearing if they wish, but this is optional.

Kind regards,

1. The Applicant did not make an appearance at the hearing listed on 5 September 2023, and did not respond to a telephone call made at the time of the hearing.

1. At the hearing I dismissed the application for want of prosecution pursuant to s.587(3)(a) of the FW Act. I now publish my reasons.

1. Section 587 of the FW Act provides as follows:

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 prospect 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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. The terms of s.587(1) make it clear that the circumstances that the Commission may dismiss an application are not limited to those set out in s.587(1)(a)-(c).

1. I am satisfied that the Commission has taken reasonable and appropriate steps to inform the Applicant of the hearing date, contact the Applicant on the date of the hearing and inform the Applicant of the consequences of not attending the hearing. The Applicant, through his failure to attend the hearing, and respond to attempts to contact him by my Chambers has indicated by his inaction that he no longer wishes to pursue the application.

1. The Respondent supports the dismissal of the application.

1. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the FW Act. I order accordingly.

DEPUTY PRESIDENT

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