Mr Matthew Abrahams v Cardno Construction Sciences

[2018] FWC 579

[2018] FWC 579

FAIR WORK COMMISSION

DECISION

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

Mr Matthew Abrahams
v
Cardno Construction Sciences
(U2017/12678)

DEPUTY PRESIDENT ASBURY BRISBANE, 6 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Mr Matthew Abrahams (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Cardno Construction Sciences (the Respondent). The application was filed in the Fair Work Commission (the Commission) on 28 November 2017.

[2] The matter was initially listed for a Telephone Conciliation before a Fair Work Commission Conciliator on 18 December 2017. A notice of listing for this conciliation was sent to the Applicant’s email address on 30 November 2017, on the basis that the Applicant nominated on his application that he would like to receive documents from the Commission by email.

[3] There was no appearance by the Applicant at the Conciliation of 18 December 2017. The Applicant was contacted on a mobile telephone number also nominated by him. A recorded message stated that the number was disconnected. Following the Conciliation correspondence was sent to the Applicant’s email address advising him to make contact with the Commission.

[4] No response was received from the Applicant and the file was allocated to me on 20 December 2017. The matter was listed for a telephone conference before me on 17 January 2017. A notice of listing was sent to the Applicant’s email address on 3 January 2018. My Associate sent a further email on 16 January 2018 seeking to confirm the Applicant’s contact details. No response from the Applicant was received to either email.

[5] There was no appearance by the Applicant at the conference on 17 January 2018 nor any correspondence seeking an adjournment. The Applicant did not contact the Commission after the conference to explain his failure to attend.

[6] Following the conference on 17 January 2018, I instructed my associate to send correspondence seeking an indication from the Applicant as to whether he intended to pursue his unfair dismissal application, and to warn the Applicant that in the absence of a reply I would consider that he no longer wished to pursue his application. I directed the Applicant to respond by no later than 4:00pm on Wednesday 24 January 2018.

[7] No further response has been received by the Applicant and no action has been taken by him or on his behalf to advise of his intention to proceed with his application or to explain his failure to participate in proceedings.

[8] Section 587(1) 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), 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.”

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

[10] Mr Abrahams has not demonstrated a willingness to prosecute his case since the filing of his application and has not responded to correspondence from the Commission. I have formed the view Mr Abrahams no longer wishes to pursue his application. In all the circumstances, I have determined to dismiss the application, on my own initiative, pursuant to s.587(3)(a) of the Act for want of prosecution. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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