Mario Bachmann v 365 Construction Services Pty Ltd Summary

[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.

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).

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.

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.

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.

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.

The Parties have not responded to any correspondence to date.

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.”

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).

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.

I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mario Bachmann sought a remedy for unfair dismissal against his former employer, 365 Construction Services Pty Ltd, under section 394 of the Fair Work Act 2009. Bachmann alleged that he was dismissed on 4 September 2023 and lodged his application with the Fair Work Commission on 20 September 2023. The Commission scheduled a conciliation on 12 October 2023, which did not proceed due to the unavailability of the Respondent. Despite subsequent attempts by the Commission to contact both parties, neither Bachmann nor 365 Construction Services Pty Ltd responded to correspondence or complied with directions, leading to the dismissal of the application.

The legal issues before the Court were whether the application could be dismissed under section 587 of the Fair Work Act 2009 due to the non-compliance of the Applicant, Mario Bachmann. Section 587 provides the Fair Work Commission with the discretion to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Furthermore, the Court had to consider whether the dismissal of the application was warranted due to the Applicant's failure to prosecute the matter, as evidenced by the lack of response to correspondence and non-compliance with directions.

In dismissing the application, Deputy President Lake noted the absence of any response from either party despite multiple attempts to contact them and the issuance of formal correspondence warning of potential dismissal. Given the non-compliance of Mario Bachmann, Deputy President Lake concluded that the application was not being prosecuted and, therefore, dismissed the application under section 587(3)(a) of the Fair Work Act 2009. The Court emphasized that the jurisdiction to dismiss an application is not limited to the specific circumstances outlined in section 587(1)(a), (b), and (c) of the Act, thereby allowing for the dismissal on the grounds of non-prosecution.

Deputy President Lake dismissed the application for unfair dismissal by Mario Bachmann against 365 Construction Services Pty Ltd. The dismissal was made pursuant to section 587(3)(a) of the Fair Work Act 2009 due to the Applicant's failure to prosecute the matter, evidenced by non-compliance with the Commission's directions and lack of response to correspondence.

Mario Bachmann v 365 Construction Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established