Obelia Rosemary Webb v Nick Moss

[2022] FWC 1837

[2022] FWC 1837

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Obelia Rosemary Webb

v

Nick Moss

(C2022/2262)

COMMISSIONER YILMAZ MELBOURNE, 14 JULY 2022

Application to deal with contraventions involving dismissal - application dismissed.

1. On 7 April 2022, Ms Obelia Rosemary Webb (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed by Nick Moss (the Respondent) in contravention of the general protections provisions.

1. The matter was allocated for staff conciliation, however following a request from the Respondent to bypass the staff conciliation, a staff conciliation did not proceed. The matter was subsequently allocated to my chambers and a notice of listing was sent to the parties confirming that a telephone mention and/or directions hearing had been scheduled for 17 May 2022.

1. On 17 May 2022, the day of the mention and/or directions hearing, my chambers attempted to telephone the Applicant. A voice mail message was left with her requesting her urgent attendance. In her absence directions were issued to the parties for the filing of materials.

1. On 30 May 2022 my chambers left a voice message noting that the Applicant’s materials were due for filing, however no response was received.

1. The parties were advised in the afternoon of the 1 June 2022 by email of a notice of listing for a non-compliance hearing was scheduled for 2 June 2022. The email advised the Applicant that her application may be dismissed for want of prosecution, should she demonstrate further disengagement with Commission proceedings.

1. On the day of the non-compliance hearing, my chambers contacted the Applicant and a voice mail message was left requesting her urgent attendance. The Applicant did not attend the non-compliance hearing.

The Legislation

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.

Consideration and Conclusion

1. At the commencement of section 587 of the Act the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).

1. The Applicant was asked to inform the Commission whether she wished to progress her application or discontinue however, the Applicant failed to reply to any of the Commission’s requests.

1. I have decided to dismiss the Application for the reason that numerous attempts have been made to contact the Applicant, however the Applicant failed to inform the Commission whether she intended to pursue her application.

1. On this basis the application is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.

COMMISSIONER

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