Jean Joubert v Mainmark Ground Engineering Pty Ltd

[2023] FWC 1712

[2023] FWC 1712

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jean Joubert
v

Mainmark Ground Engineering Pty Ltd

(U2023/4233)

COMMISSIONER BISSETT MELBOURNE, 13 JULY 2023

Application for an unfair dismissal remedy

1. On 17 May 2023 Mr Jean Joubert made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Joubert alleges he was unfairly dismissed by Mainmark Ground Engineering Pty Ltd (Respondent) on 12 May 2023.

1. Although this matter was listed for conciliation by the Commission on 19 June 2023, Mr Joubert failed to attend the conciliation and did not provide consent for a further conciliation.

1. The file was allocated to me to determine whether the dismissal was unfair pursuant to s.394 of the FW Act.

1. The matter was then listed for Mention on 4 July 2023.

1. While Mr Joubert did not confirm his attendance at the Mention, my associate nevertheless attempted to contact him at the scheduled time. Mr Joubert did not answer his nominated phone number when called or respond to an SMS message in the lead up to the Mention or immediately before the Mention.

1. Given his non-attendance at the Mention and failure to contact the Commission despite messages left for him, my chambers wrote to Mr Joubert on 4 July 2023. This email requested Mr Joubert make any submissions as to why his application should not be dismissed given his failure to prosecute his application by engaging in the processes of the Commission. That email also noted that should Mr Joubert fail to respond to that correspondence, Commissioner Bissett will consider dismissing his application. Mr Joubert was asked to respond by providing any submissions on this question by 10 July 2023. Mr Joubert has not responded to that email.

1. Section 587 sets out when the Commission may dismiss an application. it 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 prospect of success.

1. The Commission is not limited by s.587(1) as to the grounds on which it might consider dismissing an application. In this case Mr Joubert has failed to engage in the process in relation to his application beyond the filing of his application. Mr Joubert has since failed to attend the Mention or respond to any written correspondence from the Commission.

1. Mr Joubert was also advised in correspondence how he could discontinue his application if he no longer wished to continue. He has not availed himself of this opportunity either.

1. The Commission is required to perform its functions in a way that is fair and just, and quick and informal. Mr Joubert’s failure to engage in the prosecution of his claim, despite all attempts to allow him to do so has resulted in unwarranted delay. Further, Mr Joubert has given no indication in action or words that he intends to engage with the process he commenced and pursue his application at any time in the foreseeable future.

1. In these circumstances I consider it appropriate to exercise my discretion to dismiss the application of Mr Joubert in accordance with s.587(1) of the FW Act. I do so as Mr Joubert has unreasonably refused to engage with the Commission in relation to his application and I do not consider that he will do so in the future.

COMMISSIONER
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