Stuart Maddison v Custom Security Services Pty Ltd

[2012] FWA 9975

[2012] FWA 9975

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Maddison
v
Custom Security Services Pty Ltd
(U2012/13212)

COMMISSIONER DEEGAN CANBERRA, 26 NOVEMBER 2012

Unfair Dismissal - no contact from the applicant - application dismissed.

[1] On 13 September 2012 Stuart Maddison (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 Custom Security Services Pty Ltd (the respondent).

[2] The matter was listed for a conciliation conference on 3 October 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. In an email to the Conciliator, the applicant gave an indication that he didn’t wish to proceed with the application but failed to file a notice of discontinuance when requested to do so and as a consequence, the matter was allocated to my Chambers.

[4] An email was sent from my Chambers repeating the request that the applicant file a notice of discontinuance. When no reply was received, the matter was listed for a non compliance hearing. On the notice of listing the applicant was advised that if he did not appear at the hearing the application would be dismissed.

[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 appear.

[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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<Price code A, PR531706>