Daniel Moloney v Beaumont Creations Pty Ltd

[2023] FWC 1960

[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.

1. 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).

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

1. 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.

1. 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.

1. 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.

1. The Applicant has not responded to any correspondence to date.

1. 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.”

1. 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).

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

1. I Order accordingly

DEPUTY PRESIDENT

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