Kristofor Maher v The Trustee for the Burton Business Trust

[2023] FWC 3476

[2023] FWC 3476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kristofor Maher
v

The Trustee For The Burton Business Trust

(U2023/9500)

DEPUTY PRESIDENT LAKE BRISBANE, 22 DECEMBER 2023

Application for an unfair dismissal remedy – failure to prosecute – s.587 – application dismissed.

1. Mr Kristofor Maher (the Applicant) was employed by The Trustee For the Burton Business Trust (the Respondent). The Applicant commenced employment on 7 January 2021 and was dismissed on 15 September 2023. On 4 October 2023, the Applicant made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. A conciliation was listed on 31 October 2023 before the matter was allocated to me. At the commencement of the conciliation, the Applicant informed the conciliator that he wished for the matter to proceed to hearing. The conciliation did not take place. The matter was then allocated to me for determination.

1. The matter was listed for hearing on 16 January 2024 and directions were issued for the filing of material. The Applicant was required to file material in support of the application by no later than 8 December 2023. The Applicant did not file any material in accordance with the directions.

1. On 11 December 2023, the Respondent wrote to my chambers, enquiring in relation to the Applicant’s non-compliance with the directions. An email was sent by my associate on 12 December 2023, requiring the Applicant to file his material by 15 December 2023. In this email, the Applicant was given an opportunity to provide reasons for his non-compliance. The email informed the Applicant that further non-compliance may result in the application being dismissed under s.587 of the Act.

1. The Applicant did not file any material as required by 15 December 2023. On 19 December 2023, my associate attempted to contact the Applicant at 10:54am and 4:13pm with the number provided in the Form F2 Application and prior correspondence from the Applicant with no response. Further correspondence was issued to the Applicant on 20 December 2023, providing an additional opportunity for the Applicant to respond as to why he had not filed material in accordance with my directions. The Applicant was warned again that the matter may be dismissed under s.587 of the Act if he did not respond.

1. The Applicant has not responded to any correspondence since directions were issued on 17 November 2023.

1. Section 587 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 s527F 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.

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. The words, “Without limiting when FWC may dismiss an application” at the beginning of s.587(1) of the 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).

1. In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR769836>