Malcolm John Blackledge v Hovey Manpower Trust
[2024] FWC 1442
•4 JUNE 2024
| [2024] FWC 1442 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Malcolm John Blackledge
v
Hovey Manpower Trust
(U2024/3883)
| DEPUTY PRESIDENT EASTON | SYDNEY, 4 JUNE 2024 |
Application for an unfair dismissal remedy
On 4 April 2024 Mr Malcolm John Blackledge made an application under s.394 of the Fair Work Act 2009 (Cth), claiming to have been unfairly dismissed by the Hovey Manpower Trust.
On 10 April 2024 Commission staff sent correspondence to Mr Blackledge by email raising a concern that the Hovey Manpower Trust may not be a national system employer. Mr Blackledge was told that the Commission may not have jurisdiction to deal with his application and he was encouraged to seek advice. Mr Blackledge was asked to indicate whether he wanted to proceed with his application within 14 days and was warned that his application may be dismissed if he did not respond. Mr Blackledge did not respond to this correspondence.
On 11 April 2024 Commission staff attempted to contact Mr Blackledge by telephone to discuss his application. Mr Blackledge did not answer the call. Later that day Commission staff made a further attempt to contact Mr Blackledge by telephone to discuss his application without success.
Commission staff made a further attempt to contact Mr Blackledge by telephone on 22 April 2024. Once again Mr Blackledge did not answer the call.
On 1 May 2024 a further email was sent to Mr Blackledge about whether the respondent was a National System Employer. This email included copies of the earlier emails and advised Mr Blackledge that if he did not respond by 3 May 2024 then his matter might be dismissed. Once again Mr Blackledge did not respond.
On 7 May 2024 the Commission made on final attempt to contact Mr Blackledge by telephone. Once again Mr Blackledge did not answer the call.
To date, Mr Blackledge has not contacted the Commission or provided any further information.
Section 587 of the 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.
…
(3)The FWC may dismiss an application:
(a)on its own initiative; or
(b) on application.
Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).
Mr Blackledge has not answered calls from Commission staff for several weeks and he has not responded to several emails from Commission staff. Mr Blackledge appears to have abandoned his application. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Blackledge’s application.
I have separately made an order to this effect (PR775610).
DEPUTY PRESIDENT
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