Daniel Moloney v Beaumont Creations Pty Ltd

[2023] FWC 1960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Moloney
v

Beaumont Creations Pty Ltd

(U2023/4395)

DEPUTY PRESIDENT LAKE

BRISBANE, 9 AUGUST 2023

Application for an unfair dismissal remedy – failure to prosecute – s.587 – application dismissed.

Daniel Moloney (the Applicant) was employed by Beaumont Creations Pty Ltd (the Respondent) on 8 June 2022. The Applicant claims he was dismissed on 3 May 2023. On 23 May 2023, the Applicant made an application seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A Conciliation was listed on 22 June 2023 before the matter was allocated to me for determination. The Conciliation was unsuccessful.

The matter was then listed for Directions Conference on 1 August 2023 at 10:30am. My Associate attempted to contact the Applicant at 10:40am and 11:05am with the number provided. The Applicant did not respond.

On 1 August 2023, an email was sent by my Associate that the Application may be dismissed under s.587 of the Fair Work Act 2009 (Cth) resulting from non-compliance with Directions. The Applicant was given an opportunity to provide reasons for the delay by 4 August 2023.

On 7 August 2023, another email was sent providing an additional opportunity for the Applicant to respond regarding why he had not responded to any of the Commission’s correspondence to date. The Applicant was warned again that the matter may be discontinued under s.587 of the Fair Work Act 2009 (Cth) if he did not respond.

The Applicant has not responded to any correspondence to date.

Section 587 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, or an application under s527F 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.”

The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

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

I Order accordingly

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Daniel Moloney v Beaumont Creations Pty Ltd was heard by the Fair Work Commission, presided over by Deputy President Lake. The Applicant, Daniel Moloney, alleged that he was unfairly dismissed by Beaumont Creations Pty Ltd. The Applicant filed an application under s.394 of the Fair Work Act 2009, seeking a remedy for unfair dismissal. Moloney's employment with Beaumont Creations Pty Ltd was said to have begun on 8 June 2022, and the alleged dismissal occurred on 3 May 2023. On 23 May 2023, the Applicant submitted an application for a remedy for unfair dismissal. The matter was allocated to Deputy President Lake for determination after an unsuccessful conciliation on 22 June 2023.

The primary legal issue the court had to address was whether the Applicant's failure to comply with the Commission's directions warranted the dismissal of his application under s.587 of the Fair Work Act 2009. The court considered the statutory provision which grants the Fair Work Commission the authority to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The court further examined the Applicant's non-response to multiple communications from the Commission regarding the case, as well as the warning that the matter may be dismissed for want of prosecution if he did not provide reasons for his non-compliance. The court assessed whether the Applicant's silence could be construed as a lack of genuine intent to pursue the application.

Deputy President Lake concluded that the Applicant's failure to respond to any correspondence from the Commission constituted a failure to prosecute, and therefore dismissed the application under s.587(3)(a) of the Fair Work Act 2009. The Deputy President found that the Applicant's non-compliance with the Commission's directions demonstrated a lack of intent to pursue the application, and that the dismissal was justified under the circumstances. The court determined that the application was not made in accordance with the Act, as required by s.587(1)(a).

The Fair Work Commission ordered the dismissal of the Applicant's unfair dismissal application for want of prosecution, pursuant to s.587(3)(a) of the Fair Work Act 2009. The court found that the Applicant's failure to respond to any communications from the Commission, despite multiple warnings, demonstrated a lack of intent to pursue the application. As a result, the application was dismissed, and the Applicant's claim for unfair dismissal was not further pursued by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established