Joshua Millington v Ofinac Pty. Ltd
[2024] FWC 2998
•30 OCTOBER 2024
| [2024] FWC 2998 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joshua Millington
v
OFINAC PTY. LTD.
(U2024/9524)
| COMMISSIONER MIRABELLA | MELBOURNE, 30 OCTOBER 2024 |
Application for an unfair dismissal remedy
On 15 August 2024, Mr Joshua Millington (the Applicant) filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act) in the Fair Work Commission (Commission).
The Applicant commenced employment with Ofinac Pty. Ltd. on 4 March 2024 and was dismissed on 13 August 2024.
Before this matter was allocated to me on 16 October 2024 for case management, the Applicant had failed to attend a staff member conciliation conference listed on 14 October 2024. No explanation was provided by the Applicant for his failure to attend this conciliation conference.
I listed the matter for mention/conference via Microsoft Teams on 18 October 2024. The Applicant did not attend. This is despite two attempts to contact him by telephone on 18 October 2024 and an email sent to him on 18 October 2024 by my chambers requesting that he urgently join the mention/conference and offering assistance to do so.
Subsequent to his non-attendance, I then caused an email to be sent to the Applicant later that day advising that a failure to attend a listing of the Commission may impact on the continuation of the matter, drawing his attention to sections 399A and 587 of the Act and requesting that he provide an explanation for his non-attendance by 3:00pm on Monday, 21 October 2024.
The Applicant did not contact my chambers by the deadline. I therefore caused a further email to be sent to him on 21 October 2024 requesting that an explanation for his non-attendance be provided by 4:00pm on 22 October 2024 and advising that a failure to provide an explanation risked his application being dismissed.
The Applicant did not contact chambers by the deadline. Not having any communication whatsoever from the Applicant, I instructed my associate to call him with the objective of urging him to provide written responses to previous emails. My associate called him on the afternoon of 28 October 2024 where he did not answer. When my associate called him a second time and identified himself, the Applicant terminated the call. At the time of writing, the Applicant has not engaged with the Commission since that telephone call.
Consideration
Section 587 of the Act 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 section 527F 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.
The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
The Applicant has not taken any reasonable steps to progress his application since it was filed on 15 August 2024. In the circumstances, the appropriate course is to dismiss the application for want of prosecution under s.587 of the Act. The application is dismissed.
COMMISSIONER
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