Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] Mr Brock Auguston (the Applicant) filed an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal. The Applicant alleges he was dismissed from his employment with Castleross Construction Pty Ltd on 20 March 2024.

• [2] On 17 May 2024, the matter was allocated to my Chambers and on 20 May 2024, a notice of listing was issued to the parties advising that a conference would take place on Tuesday, 28 May 2024 at 9:30AM. It is observed that prior to the allocation of the matter to my Chambers, the Applicant failed to attend a conciliation conference with a staff conciliator.

• [3] On the day of the conference, my Associate called the Applicant twice between 9:25AM and 9:30AM, and there was no answer. At 9:37AM, my Associate again called the Applicant and at this point the Applicant informed my Associate that 'this is a waste of time' the Commission is unethical, and then swore at my Associate. The Applicant then hung up the phone on my Associate.

• [4] At 10:46AM on 28 May 2024, an email was sent to the parties addressing the Applicant's failure to attend the conference and the Applicant was requested to advise Chambers by 10:00AM on Wednesday, 29 May 2024, whether he intended to discontinue his application. No response was received from the Applicant.

• [5] On Thursday, 30 May 2024, directions were issued to the parties concerning the potential dismissal of the application pursuant to s 587 of the Act. The Applicant was due to file his material by Tuesday, 4 June 2024, detailing an explanation for his non-attendance at the conference. No materials were filed.

• [6] As a consequence of the Applicant's failure to attend the conference and respond to the directions issued by this Commission, his application is dismissed. My detailed reasons follow.

• [7] The Commission's powers to dismiss an application are set out generally at s 587 of the Act. That section states:

(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

(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 section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [8] Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

• [9] Having regard to the circumstances of this matter, particularly the Applicant's failure to attend the conference before the Commission and his failure to respond to directions requesting an explanation for that non-attendance, I have proceeded to determine this matter on the papers instead of progressing to a hearing as listed, and have decided to dismiss the application for want of prosecution pursuant to s 587(3)(a) of the Act.

• [10] For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

• [11] The application is dismissed. An Order[1] to that effect will issue with this decision.

[1] PR775686.

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