Sean Robertson v Tricon Mining Equipment Pty Ltd

[2025] FWC 144

[2025] FWC 144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sean Robertson
v

Tricon Mining Equipment Pty Ltd

(C2024/8257)

COMMISSIONER P RYAN SYDNEY, 15 JANUARY 2025

Application to deal with contraventions involving dismissal – dismissed pursuant to s.587 of the Fair Work Act 2009.

Background

1. On 19 November 2024, Mr Sean Robertson (Applicant) made an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal (Application).

1. By the Application, the Applicant alleges he was dismissed from his employment with Tricon Mining Equipment Pty Ltd (Respondent) with effect from 29 October 2024 in contravention of Part 3-1 of FW Act.

1. The Respondent objected to the Application on two grounds:

   (i)that it did not dismiss the Applicant; and

   (ii)if the Respondent did dismiss the Applicant, the dismissal took effect from 21 October 2024 and therefore, the Application was not made within 21 days.

2. Upon the allocation of the matter to my Chambers, I listed the matter for hearing on 10 February 2025 and issued directions for the parties to file materials on the issue of whether the Application was made within 21 days.

1. The Applicant was directed to file materials by no later than 4:00pm on Friday 20 December 2024. The Applicant did not comply with that direction and did not seek an extension of time.

2. On Tuesday 24 December 2024 and acting on my own motion, I provided the Applicant with an extension of time to file his materials. The Applicant was directed to file materials by no later than 4:00pm on Monday 6 January 2025.

1. The Applicant did not comply with that direction and did not otherwise correspond with my Chambers.

1. On Monday 13 January 2025, my Chambers sent correspondence to the Applicant seeking an explanation for his non-compliance with the directions. The Applicant was directed to provide a response by no later than 4:00pm on Tuesday 14 January 2025 and was put on notice that a failure to respond may result in the Application being dismissed without further notice.

1. The Applicant did not provide any response.

Legislative Provisions

1. Section 587 of the FW 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.”

1. The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW 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).

Consideration

1. Taking into consideration the Applicant’s failure to comply with directions and provide any explanation for non-compliance, I dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

1. For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission. 

Disposition

1. The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR783319>