Kieran Hawes v Plastic Planet Pty Ltd

[2014] FWC 6457

[2014] FWC 6457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kieran Hawes
v
Plastic Planet Pty Ltd
(C2014/1389)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 22 SEPTEMBER 2014

Application to deal with contraventions involving dismissal.

[1] This matter was listed for conference on 15 September 2014. The Applicant did not appear.

[2] Mr R. Aslanian, Solicitor for the Applicant, who had filed the Application on behalf of the Applicant, advised the Commission that he had not been able to contact him.

[3] On 15 September, after the scheduled conference, I sent the Applicant by email and Express Post correspondence requiring him to show cause why the application should not be dismissed by Close of Business Friday 19 September. No response has been received.

Relevant Legislative Provision

[4] s.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.

(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”

[5] In McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, Vice President Catanzariti decided that s.587 was sufficiently broad to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.

[6] He decided:

“[10] As Ms McLeod has not responded to the Commission’s repeated attempts to get in contact with her, and in light of her non-appearance at the teleconference listed for 3 February 2014, I have decided to dismiss her application. In accordance with the principle of a fair go all round to both employers and employees, I find that Ms McLeod’s non-participation in the Commission’s processes has already required the Respondent to expend resources in responding to a claim that Ms McLeod does not seem to have any intention of following through. Further, in taking into account fairness, justice, equity and good conscience I find that Ms McLeod has been given ample opportunity to make contact with the Commission, but has failed to do so.

[11] While the Respondent has not made an application seeking that Ms McLeod’s application be dismissed I have, on my own initiative pursuant to s.587(3)(a) of the Act, found that the application should be dismissed. I order accordingly.”

[7] I adopt the approach taken by Vice President Catanzariti and find that “fairness, justice, equity and good conscience” warrant the dismissal of the application.

[8] Mr Aslanian has subsequently filed a Form F54 “Notice of Representative Ceasing to Act”.

ORDER

1. The application lodged by Mr Kieran Hawes pursuant to s.365/s.372 of the Fair Work Act 2009 (the Act) on 4 August 2014 is dismissed pursuant to s.587 of the Act.

DEPUTY PRESIDENT

Appearances:

R. Aslanian, solicitor for the Applicant.

A. Vasilaris for the Respondent.

Hearing details:

2014

15 September (telephone conference).

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