Kyle Pocock v Bayside Gate Frames Pty Ltd

[2023] FWC 2587

[2023] FWC 2587

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kyle Pocock
v

Bayside Gate Frames Pty Ltd

(U2023/4721)

DEPUTY PRESIDENT LAKE BRISBANE, 9 OCTOBER 2023

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

1. Mr Kyle Pocock (the Applicant) was employed by Bayside Gate Frames Pty Ltd (the Respondent) from 8 June 2022. The Applicant claims he was dismissed on 19 May 2023. On 29 May 2023, the Applicant made an application seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. A Conciliation was listed on 11 July 2023 before the matter was allocated to me for determination. The Conciliation was unsuccessful.

1. The matter was then listed for jurisdictional hearing regarding whether the Applicant had met the minimum employment period, on 22 August 2023. No materials were received from the Applicant prior to the hearing. The Applicant did not attend this jurisdictional hearing despite being contacted by phone and email several times by my Chambers. A decision dismissing the jurisdictional objection was issued in this matter on 26 September 2023.[1]

1. The matter was then listed for a Directions Conference on 3 October 2023 at 3:00pm to program the hearing of the merits of the application. My Chambers attempted to contact the Applicant at 3:03pm and 3:23pm on the mobile phone number provided in the application. The Applicant did not respond.

1. Later that day on 3 October 2023, correspondence was sent from my Chambers noting that the application may be dismissed under s.587 of the Act due to the Applicant’s non-compliance with the Directions. The Applicant was given an opportunity to provide reasons for the delay.

1. On 6 October 2023, further correspondence was sent from my Chambers providing an additional opportunity for the Applicant to respond with reasons for the delay in providing a response. The Applicant was warned that the matter would be discontinued under s.587 of the Act if no response was received.

1. The Applicant has not responded to any correspondence to date.

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 the FWC may dismiss an application” at the commencement 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. Due to the circumstances set out above, I have decided to dismiss the application for want of prosecution by the Applicant, pursuant to ss.587(3)(a) of the Act.

1. I Order accordingly.

DEPUTY PRESIDENT

[1] [2023] FWC 2191.

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