Mr Joshua Mooney v Obrien Glass Industries Ltd

[2012] FWA 9976

[2012] FWA 9976

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Joshua Mooney
v
Obrien Glass Industries Ltd
(U2012/12383)

COMMISSIONER DEEGAN CANBERRA, 26 NOVEMBER 2012

Unfair Dismissal - non compliance with directions - application dismissed.

[1] On 16 August 2012 Mr Joshua Mooney (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal in respect of the termination of his employment by O’Brian Glass Industries Ltd (the respondent).

[2] The matter was listed for a conciliation conference on 4 September 2012. The applicant did not answer his phone at this time so the conference could not take place.

[3] Attempts were made to contact the applicant regarding an alternative listing time. When the applicant did not answer the calls, the matter was allocated for arbitration.

[4] Directions were issued on 19 September 2012, requiring the applicant to file an outline of submissions and witness statements by 10 October in preparation for the arbitration hearing which was listed to occur on 23 November. The applicant did not file the relevant documentation by 19 September. My Chambers made repeated efforts to contact him, by telephone at however the only time that the phone number that he provided was answered, the lady who took the call advised that the applicant no longer lived at the address of the as he had left ‘to look for work.’ The applicant did not respond to any emails that have been sent to him from FWA and has not filed any further documentation to date.

[5] When the matter called on for hearing on 26 November there was no appearance for the applicant. A representative from the respondent was informed prior to the hearing that they would not be required to file any written material or attend the hearing.

[6] Section 587 of the Act provides as follows:

587 Dismissing Applications

(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:

(a) the application is not made in accordance with the Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success

(2) Despite paragraph (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application is:

(a) frivolous or vexatious; or

(b) has no reasonable prospect of success.

(3) FWA may dismiss an application:

(a) on its own initiative

(b) on application.

[7] I note that s.587(1) does not limit the circumstances in which Fair Work Australia may dismiss an application.

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

COMMISSIONER

Appearances:

No appearance for the applicant.

The respondent was not required to appear.

Hearing details:

2012.

Canberra:

November 26

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