Jason-Grant Shannon Moss v National AG Pty Ltd

[2024] FWC 2208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jason-Grant Shannon Moss
v

National AG Pty Ltd

(U2024/7364)

DEPUTY PRESIDENT DEAN

CANBERRA, 20 AUGUST 2024

Application for an unfair dismissal remedy.

On 26 June 2024 Mr Jason-Grant Shannon Moss (Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal from National AG Pty Ltd.

The matter was listed for conciliation on 30 July 2024. The conciliation did not take place due to the Applicant’s failure to attend. The Applicant was not able to be contacted by telephone and did not contact the Commission about his non-appearance.
The application then came before me at a telephone conference scheduled to be held on 16 August 2024 and the Applicant again did not attend. Numerous attempts were made to contact the Applicant at the commencement time of the conference without success.
The Commission subsequently sent correspondence to the Applicant directing him to provide an explanation by 19 August 2024 for his non-attendance at the conference. The Applicant was advised that his application would be dismissed if he failed to provide a compelling reason for his non-attendance.

No correspondence has been received from the Applicant to this date.

Section 587 of the Act provides the Commission with a broad discretion to dismiss an application. It reads:

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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.

The Applicant has made no contact with the Commission since lodging the application on 26 June 2024. I am satisfied that in failing to attend the Commission proceedings on two occasions and failing to respond to the Commission’s correspondence, the Applicant has not demonstrated an intention to pursue his unfair dismissal application. Accordingly, I have decided to dismiss the application for want of prosecution pursuant to s.587 of the Act.

An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jason-Grant Shannon Moss brought an application against National AG Pty Ltd under section 394 of the Fair Work Act 2009, seeking a remedy for his alleged unfair dismissal. The application was scheduled for conciliation on 30 July 2024, but the Applicant did not attend, nor did he contact the Commission to explain his absence. The matter was subsequently scheduled for a telephone conference on 16 August 2024, which the Applicant also did not attend despite numerous attempts by the Commission to contact him. Following the Applicant's continued absence and failure to respond to correspondence requesting an explanation, the Deputy President decided to dismiss the application for want of prosecution.

The legal issues before the court involved whether the Fair Work Commission had the discretion to dismiss the Applicant's application for unfair dismissal under section 587 of the Fair Work Act. Section 587 grants the Commission broad discretion 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. Additionally, the Deputy President considered whether the Applicant's failure to attend proceedings and respond to correspondence demonstrated a lack of intention to pursue his application, warranting dismissal under the Act.

In dismissing the application, the Deputy President found that the Applicant had not demonstrated an intention to pursue his claim, given his repeated failure to attend proceedings and respond to correspondence from the Commission. The Deputy President noted that the Fair Work Commission must not dismiss an application under section 365 or 773 solely on the grounds that it is frivolous or has no reasonable prospects of success, but these limitations do not apply to the dismissal of applications under section 394. Given the Applicant's conduct, the Deputy President was satisfied that the application had no reasonable prospects of success and dismissed it for want of prosecution.

An order dismissing the application will be issued with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established