Mr Iain McGregor v Cobham Nas P/L
[2022] FWC 3201
•5 DECEMBER 2022
| [2022] FWC 3201 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Iain McGregor
v
Cobham Nas P/L
(U2022/7124)
| COMMISSIONER RIORDAN | SYDNEY, 5 DECEMBER 2022 |
Application for an unfair dismissal remedy – application dismissed.
On 14 July 2022, Mr Iain McGregor (the Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) with the Fair Work Commission (the Commission), being an application for an unfair dismissal remedy (the Application) against his former employer, Cobham Nas P/L (the Respondent).
The matter was allocated to my Chambers on 9 September 2022. A notice of listing was issued on 9 September 2022 for a Conference to be held on 20 September 2022.
On 15 September 2022, the Applicant wrote to my Chambers requesting the Conference listed on 20 September 2022 be adjourned due to his responsibilities as sole decision maker for a friend who had recently been admitted to palliative care. On 16 September 2022 my Chambers granted the adjournment and enquired whether a week adjournment would be sufficient.
The Applicant did not provide a response to the correspondence of 16 September 2022.
On 20 September 2022, my Chambers wrote to the Applicant requesting that he advise when he would be available for a re-listing of the matter. On 25 September 2022, the Applicant wrote to my Chambers as follows:
“I will be in touch asap.”
On 12 October 2022, my Chambers wrote to the Applicant requesting he advise of his upcoming availability for a telephone conference. No response was received.
On 14 November 2022, my Chambers again wrote to the Applicant requesting that he indicate his availability to proceed to a conference. No response was received.
On 21 November 2022, the Respondent’s representative wrote to my Chambers making application for the Application to be dismissed in light of the Applicant’s failure to prosecute. On that same date, my Chambers wrote to the Applicant in the following terms:
“The Commission wrote to you on 12 October 2022 and 14 November 2022 to enquire whether you were in a position to proceed to conference in this matter and seeking your availability. To date, we have not received a response from you.
Consequently, you are required to provide written communication to these Chambers by close of business on Monday, 28 November 2022. In the event that we do not receive such communication, you are hereby advised that this matter may be dismissed for want of prosecution. The file will be closed accordingly.”
To date, the Applicant has not provided further response, either by email or by way of telephone.
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.
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.”
In the circumstances, the application has no reasonable prospects of success and I have decided to dismiss the application for want of prosecution.
I so Order.
COMMISSIONER
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