Troy Kays v AMYC Pty Limited

[2024] FWC 2295

[2024] FWC 2295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Troy Kays
v

AMYC Pty Limited

(U2024/5818)

DEPUTY PRESIDENT LAKE BRISBANE, 28 AUGUST 2024

Application for an unfair dismissal remedy – failure to prosecute – s.587 – application dismissed.

1. Mr Troy Kays (the Applicant) was employed by AMYC Pty Ltd (the Respondent) on 29 August 2022 until he was dismissed on 3 May 2024. On 22 May 2024, the Applicant made an application seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The matter was listed for member assisted conciliation on 8 July 2024. My Associate attempted to contact the Applicant and Respondent with the number provided to the Commission. The Applicant nor Respondent were contactable.

1. On 12 July 2024, the Applicant’s submissions were due. These submissions were not received. An email was sent by my Associate that the application may be dismissed under s.587 of the Fair Work Act 2009 (Cth) if the Applicant did not comply with Directions. The Applicant was given an opportunity to provide reasons for the delay. The Applicant did not provide a response.

1. The matter was listed for non-compliance hearing on 30 July 2024 at 12:00pm. The Applicant and Respondent attended the hearing. During this hearing, the Applicant and Respondent sought to resolve the matter on an informal basis.

1. My Chambers requested a status update from the Applicant on 8 August 2024. No response has been received to date.

1. Section 587 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, or an application under s527F that does not consist solely of an application for a stop sexual harassment order 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, “without limiting when FWC may dismiss an application” under s.587(1) of the Act establishes 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).

1. In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act as the Applicant is not pressing his unfair dismissal matter.

1. I Order accordingly.

DEPUTY PRESIDENT

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