Mario Bachmann v 365 Construction Services Pty Ltd

[2023] FWC 3202

[2023] FWC 3202

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mario Bachmann
v

365 Construction Services Pty Ltd

(U2023/9129)

DEPUTY PRESIDENT LAKE BRISBANE, 6 DECEMBER 2023

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

1. Mario Bachmann (the Applicant) was employed by 365 Construction Services Pty Ltd (the Respondent) from 18 October 2022. The Applicant claims he was dismissed on 4 September 2023. On 20 September 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 12 October 2023 before the matter was allocated to me for determination. The Conciliation did not proceed due to the unavailability of the Respondent. The Staff Conciliator attempted to call the Respondent seven times and left voice mail messages.

1. The matter was allocated to my Chambers on 10 November 2023. The matter was then listed for a Directions Conference on 16 November 2023 at 1:30pm to program the hearing of the application. My Chambers attempted to contact the Applicant on the mobile phone number provided in the application. The Applicant did not respond. My Chambers attempted to contact the Respondent on the mobile phone number provided in the application. The Respondent did not respond.

1. On 16 November 2023, correspondence was sent from my Chambers noting that the application may be dismissed under s.587 of the Act if the parties are non-compliant with the Directions issued on 14 November 2023. Both parties were given an opportunity to provide reasons for their non-compliance.

1. On 5 December 2023, correspondence was sent from my Chambers warning that the matter will be dismissed as no response has been received from either party.

1. The Parties have 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 s.587(3)(a) of the Act.

1. I Order accordingly.

DEPUTY PRESIDENT

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