Michael McCosker v Bank of Queensland Limited

[2013] FWC 4018

[2013] FWC 4018

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael McCosker
v
Bank of Queensland Limited
(U2012/16722)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 JUNE 2013

Application dismissed pursuant to s.587 of the Act.

[1] On 13 December 2012, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Michael McCosker (the Applicant). The Applicant was dismissed from his employment with the Bank of Queensland Limited (the Respondent) on 30 November 2012.

[2] Conciliation was listed for 18 January 2013 and was not able to take place. The Fair Work Commission (the Commission) attempted to make arrangements with the Applicant to convene another conciliation, however the Applicant failed to contact the Commission. As such, the matter was referred to the arbitration team for programming.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 20 May 2013. The Applicant failed to comply with this direction and the matter was subsequently listed for a non compliance hearing before Commissioner Wilson on 30 May 2013.

[4] The Applicant failed to attend the non compliance hearing. In the absence of the Applicant, Commissioner Wilson decided to send correspondence to the Applicant requesting him to provide an explanation, within seven days, as to why he has failed to comply with the Commission’s direction.

[5] The Applicant failed to provide a response to the Commission’s correspondence.

[6] On 14 June 2013, I convened a conference/hearing in relation to the future progress of the matter. The Applicant failed to attend and Mr Rogers appeared on behalf of the Respondent.

[7] At the hearing, Mr Rogers submitted that the Applicant:

(a) failed to attend the conciliation and the listed hearings on 30 May 2013 and 14 June 2013;

(b) failed to comply with directions;

(c) that the prospects of the Applicant’s application were poor as the Respondent believes they had a valid reason to dismiss the Applicant.

[8] The Respondent further submitted that the matter should be dismissed for want of prosecution.

[9] Following my direction made at the hearing, the Respondent filed a statutory declaration on 18 June 2013 attesting to the matters as set out in the employer’s response to the unfair dismissal application. I am satisfied with the information provided by the Respondent.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[11] As the Applicant has failed to comply with directions and has failed to make contact with the Commission, I have decided to determine the application on the papers.

[12] 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.

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.

[13] After considering all the material, I have decided to dismiss the Applicant’s application pursuant to s.587(1)(c) of the Act as it has no reasonable prospects of success. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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