James Tangiia Pakoti v Toll Personnel Pty Ltd

[2022] FWC 637

[2022] FWC 637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

James Tangiia Pakoti
v

Toll Personnel Pty Ltd

(U2021/11227)

COMMISSIONER P RYAN SYDNEY, 23 MARCH 2022

Application for an unfair dismissal remedy

1. Mr James Tangiia Pakoti (Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (Application)

1. By the Application, the Applicant alleges he was unfairly dismissed from his employment with Toll Personnel Pty Ltd (Respondent) on 22 November 2021. On 17 December 2021, the Respondent filed its employer response in which the Respondent objected to the Application on the basis that it did not dismiss the Applicant.

1. The matter was listed for a conciliation conference before a staff conciliator on 21 February 2022, but the matter was not resolved.

1. On 10 March 2022, the matter was allocated to my chambers. On 17 March 2022, the matter was listed for a case management and directions hearing. The case management and directions hearing did not go head as the Applicant failed to attend without notice to the Commission. My chambers made multiple attempts to contact the Applicant by telephone and email but was unsuccessful.

1. On 17 March 2022, my chambers sent correspondence to the Applicant requesting an explanation for his non-attendance at the case management and directions hearing. The Applicant was advised that in the absence of a response, the Application may be dismissed.

1. The Applicant did not respond.

Legislative Provisions

1. Section 587 of the FW 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.”

1. The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW 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).

Consideration

1. Taking into consideration the Applicant’s failure to attend a case management and directions hearing before the Commission, and failure to respond to correspondence requesting an explanation for that, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

1. For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

Disposition

1. The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

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