Matthew Warnock v Devcon Civil Pty Ltd

[2019] FWC 2672

[2019] FWC 2672

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Warnock
v
Devcon Civil Pty Ltd
(U2019/2004)

DEPUTY PRESIDENT DEAN SYDNEY, 17 APRIL 2019

Application for an unfair dismissal remedy.

[1] On 25 February 2019, Mr Warnock made an application under s.394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal by Devcon Civil Pty Ltd (Devcon).

[2] The application was listed for telephone conciliation before a Fair Work Commission conciliator on 28 March 2019. The conciliation could not take place as Mr Warnock was unable to be contacted at that time. Prior to the matter being listed, the Commission was advised by Devcon on 27 March 2019 that the parties had reached an agreement to settle the matter. The Commission staff made several unsuccessful attempts to contact Mr Warnock to confirm the settlement.

[3] On 2 April 2019 correspondence was sent to Mr Warnock requesting that he contact my chambers by 9 April 2019 to advise whether or not he wished to proceed with his application. Mr Warnock did not respond to that correspondence.

[4] On 10 April 2019, further correspondence was sent to Mr Warnock directing him to provide a response by 4:00pm on 15 April 2019. He was advised that a failure to respond may result in his application being dismissed.

[5] Final attempts were made to contact Mr Warnock by telephone on 16 April 2019 without success.

[6] Mr Warnock has not responded to any of the Commission’s correspondence.

[7] Section 587 of the Act 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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[8] The words, “Without limiting when 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).

[9] In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[10] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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