Tom Findlay v Mick Taylor Automatic

[2022] FWC 1973

[2022] FWC 1973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Tom Findlay
v

Mick Taylor Automatic

(C2022/2103)

COMMISSIONER P RYAN SYDNEY, 26 JULY 2022

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

Background

1. Mr Tom Findlay (Applicant) filed 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.

1. By the Application, the Applicant alleges he was dismissed from his employment with Mick Taylor Automatic on 21 March 2022 in contravention of Part 3-1 of FW Act.

1. A conference before a Commission staff conciliator was listed for the matter on 12 July 2022. Neither party attended the conference, nor could they be contacted by the Commission.

1. On 15 July 2022, the matter was allocated to my chambers.

1. The matter was listed for conference before me on 25 July 2022. Again, neither party attended the conference and, despite several attempts by my chambers, neither could be contacted.

1. The Applicant was then directed to provide an explanation for his non-attendance by 4:00pm on 25 July 2022. The Applicant did not respond.

Relevant 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 conferences before the Commission and his failure to respond to correspondence requesting an explanation for that 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.

Conclusion

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

COMMISSIONER

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