Hayden Joshua Bowden v Pmt Security Systems Pty. Ltd
[2024] FWC 1691
•27 JUNE 2024
| [2024] FWC 1691 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hayden Joshua Bowden
v
PMT Security Systems Pty. Ltd.
(U2024/3982)
| COMMISSIONER HUNT | BRISBANE, 27 JUNE 2024 |
Application for an unfair dismissal remedy
On 7 April 2024, Mr Hayden Joshua Bowden made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with PMT Security Systems Pty. Ltd. (the Respondent) and that his dismissal was harsh, unjust or unreasonable.
The matter was listed for a staff conciliation on 13 May 2024. The conciliation could not proceed as Mr Bowden did not join the conciliation conference and could not be contacted by telephone. Mr Bowden did not provide any explanation for his non-attendance at the conciliation.
The matter was allocated to me on 21 May 2024. The following day, I issued directions requiring the parties to file material by certain dates and notified the parties of a telephone conference to be convened on 29 May 2024. Mr Bowden was contacted by email again on 28 May 2024 seeking that he confirms his attendance and contact number as a matter of urgency. Mr Bowden did not attend the telephone conference on 29 May 2024, despite numerous attempts by my Associate to contact him.
On account of Mr Bowden’s failure to respond to emails or telephone calls, I caused my chambers to send correspondence to Mr Bowden, via express post, reproduced below:
“Dear Mr Bowden,
U2024/3982 - Mr Hayden Joshua Bowden v Pmt Security Systems Pty. Ltd.
I am writing to you in respect to your application filed in the Fair Work Commission (the Commission) on 7 April 2024.
On 22 May 2024, my chambers sent correspondence to your elected email address of [redacted], informing you that your application has been allocated to me (Commissioner Hunt) for determination. In that correspondence, I issued directions requiring the parties to file material in preparation for a hearing of this matter and the matter was listed for a conference at 10:00am (AEST) on Wednesday, 29 May 2024.
A notice of listing confirming the details of the conference was sent to your elected email address on 24 May 2024.
In the absence of any confirmation made by yourself, my chambers sent you further correspondence on 28 May 2024 requesting you to respond to the email as a matter of urgency. I confirm my chambers has not received any response from you.
On the day of the conference, my Associate made several attempts to contact you however on each occasion, the call went straight to voicemail. My Associate left a voicemail requesting you to call back urgently in respect to your application.
The Respondent confirmed your contact details in the conference, and you were contacted again on 4 June 2024. However, again, your call went straight to voicemail.
Should you wish to proceed with your application, or seek to discontinue your application, please urgently call my Chambers at [redacted] to advise as such.
In the absence of any response from yourself, you risk your application from being dismissed under section 587 of the Fair Work Act 2009 for want of prosecution.
Yours sincerely,
Commissioner Hunt”
I note that Australia Post confirmed the correspondence was delivered to Mr Bowden’s residential address on 7 June 2024. On 18 June 2024, I informed the parties by email that I had not received any response from Mr Bowden and therefore, the matter is listed for a non-compliance hearing at 11:30am on Thursday, 27 June 2024. I caused my chambers to send correspondence to Mr Bowden again, via express post, reproduced below:
“Dear Mr Bowden,
U2024/3982 - Mr Hayden Joshua Bowden v Pmt Security Systems Pty. Ltd.
I am writing to you in respect to your application filed in the Fair Work Commission (the Commission) on 7 April 2024.
On 5 June 2024, I caused my chambers to send correspondence to you by express post seeking that you urgently contact my chambers. Chambers received confirmation from Australia Post that the correspondence was delivered on Friday, 7 June 2024. However, the Commission has not received any response from you as sought.
Accordingly, the matter has now been listed for a Non-Compliance Hearing by telephone at 11:30am (AEST) on Thursday, 27 June 2024. Please find the Notice of Listing annexed to this correspondence for the details of the hearing.
You are directed to attend the hearing and you will be contacted on your elected mobile number of [redacted].
If your mobile number of [redacted] is incorrect, please contact chambers as soon as possible by email at [email protected], or alternatively, by calling [redacted] to provide your correct mobile number to be called for the hearing.
Please be advised that in the circumstances you do not attend the Non-Compliance Hearing, the Commissioner will likely dismiss your application under section 587 of the Fair Work Act 2009 for want of prosecution.
Yours sincerely,
Commissioner Hunt”
From 11:30am on 27 June 2024, my Associate made numerous attempts to contact Mr Bowden by telephone, without success. The Hearing was therefore vacated.
Section 587 of the Act provides 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.”
After considering the numerous attempts to engage Mr Bowden in his application to the Commission, including his failure to attend the conciliation, preliminary conference and Non-Compliance Hearing without a reasonable explanation, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to s.587(3)(a) of the Act. Mr Bowden has demonstrated an unwillingness to prosecute his own application and consequently I find that the application has no reasonable prospects of success.
An Order to this effect will be issued with this decision.
COMMISSIONER
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