Andrew Breust v Superior Food Services Pty Ltd

[2020] FWC 2508

[2020] FWC 2508

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Unfair dismissal

Andrew Breust
v
Superior Food Services Pty Ltd
(U2019/12710)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 MAY 2020

Application for an unfair dismissal remedy – application dismissed for want of prosecution by the Applicant.

[1] On 15 November 2019 Mr Andrew Breust (the Applicant) lodged an application under s. 394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by Superior Food Services Pty Ltd (SFS – the Respondent) on 25 October 2019.

[2] Mr Breust’s application was allocated to me on 17 December 2019. On 2 January 2020 Mr Breust’s application was listed for a telephone mention and/or directions hearing at 10:00am on 17 February 2020. Mr Breust did not attend the telephone mention and/or directions hearing, nor did he contact my chambers to say he was unavailable or to explain his non-attendance. Numerous attempts to contact Mr Breust by telephone at the scheduled time of the hearing were unsuccessful. Later that afternoon my chambers emailed Mr Breust in the following terms:

“I refer to the telephone Mention and/or directions hearing that was due to take place at 10am today (17 February 2020). I made several attempts to contact you on 0408 205 712 but was unsuccessful.

Deputy President Kovacic now seeks an explanation from you as to why you did not appear at today’s hearing. You must provide an explanation by no later 5pm on Tuesday 17 February 2020.”

[3] No response was received from Mr Breust.

[4] On 25 February 2020 my chambers again sent an email to Mr Breust. Attached to this email was a letter from me which stated:

“I refer to your unfair dismissal application which was received by the Fair Work Commission (the Commission) on 15 November 2019.

Your application was listed for a telephone mention and directions hearing on 17 February 2020 to set a timetable for dealing with your application. You did not attend the telephone and did not contact chambers despite being sent a reminder email that same day. My chambers subsequently wrote to you on my behalf on 17 February 2020 seeking an explanation as to why you did not attend. No response has been received.

In circumstances where you failed to attend the telephone mentions and directions hearing and have not responded to the correspondence referred to above, I seek an indication by no later than 4pm on Friday, 28 February as to whether you intend to press your application. Should you not respond your application may be dismissed without further recourse to the parties pursuant to s. 587(1) of the Fair Work Act 2009 (Cth) and at the Commission’s own initiative [s. 587(3)(a)].

Alternatively, if you do not intend to proceed with your application please complete and return the Form F50 attached to this email.” (Emphasis as per original)

[5] Again, no response was received from Mr Breust.

[6] On 21 April 2020 the Commission yet again wrote to Mr Breust. The correspondence read as follows:

“I refer to your unfair dismissal application received by the Fair Work Commission (the Commission) on 15 November 2019.

Your application was listed for a telephone Mention and/or directions hearing on 17 February 2020 to set a timetable for dealing with your application. You neither attended the telephone nor contacted chambers with reasons for your non-attendance. My chambers subsequently wrote to you on my behalf on 17 and 25 February 2020 seeking an explanation as to why you did not attend. No response has been received.

In circumstances where you failed to attend the telephone Mentions and/or directions hearing and have not responded to the correspondence referred to above, I seek an indication by no later than 4pm on Friday, 24 April 2020 as to whether you intend to press your application. Should you not respond your application may be dismissed without further recourse to the parties pursuant to s. 587(1) of the Fair Work Act 2009 (Cth) and at the Commission’s own initiative [s. 587(3)(a)].

Alternatively, if you do not intend to proceed with your application please complete and return the Form F50 attached to this email.” (Emphasis as per original)

[7] Once again Mr Breust has not responded to the above email or made any contact with the Commission regarding his application.

[8] It is clear from the above chronology that Mr Breust has taken absolutely no steps to prosecute his unfair dismissal application despite repeated attempts by the Commission to ascertain his intentions regarding the matter.

[9] Against that background and as foreshadowed in the Commission’s most recent correspondence to Mr Breust, I have decided to dismiss his application pursuant to s.587 of the Act.

[10] By way of background, s.587 sets out the Commission’s general powers to dismiss an application. Specifically, s.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 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.”

[11] As stated in the legislative note to s.587(1) of the Act, another provision of the Act under which the Commission can dismiss an unfair dismissal application is s.399A of the Act. However, that power is only exercisable upon application by the employer. In this case, SFS has not made an application under s.399A of the Act.

[12] As can be seen from the terms of s.587, the provision does not limit the grounds upon which the Commission may on its own motion dismiss an application. Nevertheless, as noted by Deputy President Sams in Nick Williams v Sydney Gay & Lesbian Business Association t/a Sydney Gay & Lesbian Business Association (Williams) 1 “[i]t has long been held by the Courts, Commissions and Tribunals that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so”. Having regard to the above extract from the decision in Williams, in circumstances where the Commission has written to Mr Breust on three occasions regarding his failure to attend Commission proceedings and/or his application and received no response let alone any contact from him, the Commission can hardly be accused of dismissing his application hastily. It is clear that Mr Breust has been given every opportunity to press his application and that he has failed to do anything whatsoever to press his application and/or to engage with the Commission at any time in the more than four months since his application was listed for a telephone mention and/or directions hearing.

[13] In deciding to dismiss Mr Breust’s application I have also had regard to the views of the Full Bench in Peter Viavattene v Health Care Australia 2 which said:

“[39] …There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” 3 (Underlining added)

[14] In my view, in circumstances where it appears that Mr Breust has no intention of prosecuting his unfair dismissal application, it would be unfair and unreasonable to keep SFS on tenterhooks regarding the matter. Further, continued efforts by the Commission to clarify Mr Breust’s intentions regarding his application are in my view unlikely to engender a response from Mr Breust.

[15] For all the above reasons and in the light of Mr Breust’s persistent and continued failure to prosecute his unfair dismissal application, I have decided to exercise the discretion available to the Commission under s.587 of the Act to dismiss his application. An order to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR719343>

 1   [2019] FWC 4399 at [12]

 2   [2013] FWCFB 2532

 3   Ibid at [39]