Dalvin Nguyen v Augmented Solutions Corporation Pty Ltd

[2024] FWC 811

[2024] FWC 811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dalvin Nguyen
v

Augmented Solutions Corporation Pty Ltd

(U2023/11352)

COMMISSIONER LIM PERTH, 4 APRIL 2024

Application for an unfair dismissal remedy

1. On 21 November 2023, Dalvin Nguyen (the Applicant) applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy in respect of their dismissal by Augmented Solutions Corporation Pty Ltd (the Respondent).

1. I conducted a case management conference on 1 February 2024. I subsequently listed the matter for hearing and issued directions to the parties for the filing of material.

1. The Applicant filed his material in line with the directions on 15 February 2024. The Respondent filed their material on 29 February 2024. The Applicant did not file any responsive material.

1. The Applicant did not attend the Commission on 22 March 2024 for the hearing. My chambers called the Applicant at 9:35am and 9:42am on his nominated phone number and the Applicant did not answer. A voicemail was left requesting that the Applicant immediately contact the Commission. The Respondent attended the Commission.

1. An email was sent to the Applicant on 26 March 2024 directing him to provide a satisfactory reason as to why he did not attend the hearing and warning him if the Commission did not hear from him his application may be dismissed. A further email was sent on 2 April 2024 notifying the parties that I was considering dismissing his application pursuant to s 587 of the Act on the basis that the Applicant is not properly pursuing his application.

1. To date, the Applicant has not provided any further correspondence or materials to the Commission.

1. Section 587 of the Act states 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.

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. Section 587 does not limit the circumstances in which the Commission can consider dismissing an application.[1] The Commission has the power to dismiss an application where there is an unreasonable or unexplained non-compliance on its own initiative.[2]  There is no legislative or common law requirement that the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings that they have initiated.[3] 

1. In this matter, Mr Nguyen did not attend the hearing for his own application. He has not responded to any contact from the Commission via phone or email. I consider it appropriate to exercise my discretion to dismiss Mr Nguyen’s application for want of prosecution in accordance with s 587(3)(a) of the Act.

1. The application is therefore dismissed. An order will issue accordingly.[4]

COMMISSIONER

[1] McLeod v Kulgera Trading Company Pty Ltd[2014] FWC 2112; Tomas v Symbion Health [2011] FWA 5458, [57]–[58].

[2] Fair Work Act 2009 (Cth) s 587(3)(a).

[3] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].

[4] PR772883

Printed by authority of the Commonwealth Government Printer

<PR772882>