Madyson Gleeson v Matt Molloy Pty Ltd

[2022] FWC 3014

[2022] FWC 3014

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Madyson Gleeson
v

Matt Molloy Pty Ltd

(U2022/8082)

COMMISSIONER P RYAN SYDNEY, 14 NOVEMBER 2022

Application for an unfair dismissal remedy

Background

1. Ms Madyson Gleeson (Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (Application)

1. By the Application, the Applicant alleges she was unfairly dismissed from her employment with Matt Molloy Pty Ltd (Respondent) on 22 July 2022.

1. On 4 November 2022, the matter was listed for a case management and directions hearing. The Applicant did not attend the case management and directions hearing and did not give any prior notice of her non-attendance to the Commission or her representative. Notwithstanding the Applicant’s non-attendance, her representative confirmed she had held instructions to deal with case management issues. Following the case management and directions hearing, a notice of listing and directions were issued for the hearing of a jurisdictional objection raised by the Respondent.

1. On 8 November 2022, the Respondent forwarded correspondence to my chambers raising a further matter. Upon receipt of that correspondence, I listed the matter for mention and directions on 9 November 2022. The notice of listing directed the parties to be in attendance.

1. On 9 November 2022, the Applicant failed to attend the mention and directions hearing. The Applicant’s representative was unable to confirm the reason for her non-attendance with any degree of certainty but did confirm that the Applicant was aware of the listing before the Commission.

1. Following the mention and directions hearing my chambers sent correspondence to the Applicant requesting an explanation for the Applicant’s non-attendances on 4 and 9 November 2022, as well as an explanation for her failure to advise the Commission of her non-attendance in advance on both occasions. The correspondence directed that a response be provided by 4:00pm on 11 November 2022. The Applicant was advised that in the absence of a response, the Application may be dismissed pursuant to s.587 of the FW Act.

1. Neither the Applicant nor her representative on her behalf provided any response.

Legislative Provisions

1. Section 587 of the FW Act provides as follows:

“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 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, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW 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).

Consideration

1. Taking into consideration the Applicant’s failure to attend listings before the Commission and her failure to provide any response explaining the reasons for her non-attendances, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

1. At the time of preparing this decision, the Respondent made an application seeking an order to dismiss the matter pursuant to s.399A of the FW Act. As I have determined to dismiss the matter pursuant to s.587, I do not need to consider the Respondent’s application any further.

1. Finally, and for completeness, at the time of issuing this decision the Applicant has not made any contact with the Commission.

Disposition

1. The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

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