Tobbie Muldoon v Pybar Mining Services Pty Ltd

[2022] FWC 100

[2022] FWC 100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tobbie Muldoon
v

Pybar Mining Services Pty Ltd

(U2021/10024)

COMMISSIONER P RYAN SYDNEY, 21 JANUARY 2022

Application for an unfair dismissal remedy

Background

1. Mr Tobbie Muldoon (Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (Application)

1. By the Application, the Applicant alleges he was unfairly dismissed from his employment with Pybar Mining Services Pty Ltd on 21 October 2021.

1. The matter was listed for a conciliation conference before a staff conciliator on 5 January 2022. The conciliation conference did not go ahead as the Applicant did not attend the conference and was unable to be contacted.

1. The matter was then referred to my chambers and listed for a case management and directions hearing on 14 January 2022. The case management and directions hearing did not go head as the Applicant failed to attend without notice to the Commission. Furthermore, when my chambers attempted to contact the Applicant, the call was immediately cut off once my associate identified herself. The Applicant did not return the call or otherwise attempt to contact the Commission.

1. On 14 January 2022, my chambers sent correspondence to the Applicant requesting an explanation for the Applicant’s non-attendance be provided by 4:00pm on 17 January 2022. The Applicant was advised that in the absence of a response, the Application may be dismissed pursuant to s.587 of the FW Act.

1. The Applicant did not respond.

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 attend the conciliation conference, the case management and directions hearing, and his failure to provide a response or explanation for his non-attendance, I have decided to 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

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