Paul Hoger v Strong Trades Pty Ltd T/A Bumpertech

[2020] FWC 3259

[2020] FWC 3259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Hoger
v
Strong Trades Pty Ltd T/A Bumpertech
(U2019/14629)

VICE PRESIDENT CATANZARITI SYDNEY, 22 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 23 December 2019, Paul Hoger (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, Strong Trades Pty Ltd T/A Bumpertech.

[2] The application was listed before a Commission staff conciliator on 13 February 2020. The applicant did not attend the conciliation. The applicant subsequently requested that conciliation be rescheduled, but the respondent declined to participate a second time.

[3] The application was then allocated to me. My chambers sent correspondence to the applicant on 6 March 2020, directing him to advise us by 4:00 pm on 13 March 2020 whether he still pressed his application. However, we received no response from the applicant by that time.

[4] On 18 March 2020, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00 pm on 23 March 2020. He was advised that in the absence of a reply, his application may be listed for a non-compliance hearing, and may be dismissed. However, we again received no response from the applicant by that time.

[5] I listed this application for a non-compliance hearing by telephone on 21 May 2020. The applicant appeared at the hearing initially, but disconnected from the conference call a short time after the hearing commenced. My chambers tried repeatedly to reconnect the applicant to the call, but were unable to contact him as he did not answer the telephone subsequently.

[6] On 22 May 2020, my chambers sent further correspondence to the applicant, noting that he had prematurely disconnected from the non-compliance hearing, and directing him to advise by 4:00 pm on 28 May 2020 whether he still wished to proceed with this application. However, again, we received no response from the applicant by that time.

[7] To date, the applicant has not responded to any of my chambers’ written correspondence, nor have my chambers heard further from him.

[8] 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.”

[9] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

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

VICE PRESIDENT

Appearances:

P Hoger, the applicant, in person (initially).
S Strong for the respondent.

Hearing details:

Sydney (with telephone links to Brisbane).
2020.
May 21.

Printed by authority of the Commonwealth Government Printer

<PR720386>