Andrew Collins

[2022] FWC 636

[2022] FWC 636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Andrew Collins

(AB2021/552)

COMMISSIONER SIMPSON BRISBANE, 24 MARCH 2022

Application for a FWC order to stop bullying - application dismissed under s.587.

1. On 29 September 2021, Mr Andrew Collins (Mr Collins / the Applicant) made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. The Respondents named in the Form 72 are Transportable Shade Sheds Pty Ltd (the Employer) and Mr Robert Salomon (Mr Salomon / the Person Named). However, the Form F74 from the Employer indicated that the correct employing entity is Sable Labour Hire Pty Ltd.

1. This matter was allocated to me on 8 November 2021, and I listed it for a Conference on 15 November 2021.

1. Prior to the Conference, my Associate sent an email to the Applicant which stated:

“Dear Mr Collins

I refer to the above matter and attached Notice of Listing advising the matter is listed for teleconference before Commissioner Simpson at 10am AEST today.

It was requested that you confirm your attendance and provide your best contact number by 10:00am Friday 12 November 2021.

Please confirm attendance and provide your best contact number ASAP. If no response is received, I will contact your mobile number [redacted].”

1. Later that morning, my Associate attempted to contact Mr Collins for the Conference multiple times, however the calls went unanswered.

1. At 10:26am that same morning, my Associate sent the following correspondence to Mr Collins:

“Dear Mr Collins

Re: AB2021/552 - Application by Andrew Collins

On 9 November 2021 the Commissioner issued a Notice of Listing in the above matter requiring you to attend a Conference by telephone for your application at 10:00am Monday 15 November 2021.

You were required to confirm attendance and provide your best contact number by 10:00am Friday 12 November 2021, however chambers did not receive this confirmation from you.

Attempts were made to contact you on the number listed on your application. The number went straight to message bank on the numerous attempts to call you and you failed to appear for the Conference.

You have made no attempt to contact the chambers of Commissioner Simpson to explain the reasons for not attending the Conference listed today.

The Commissioner directs you to provide your reason, in writing, for failing to attend the Conference by close of business Monday 22 November 2021. If no explanation is received from you the Commissioner will give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.

Your response can be e-mailed to [email protected], or posted to the Fair Work Commission, GPO Box 5713, Brisbane, QLD, 4001.”

1. To date no correspondence or telephone contact has been received from Mr Collins.

1. Section 587 of the 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. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

1. I note 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.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Collins has failed to respond to various correspondence from chambers, and provide any reasonable explanation to the Commission regarding this failure. Mr Collins has shown no willingness to prosecute his case and has taken no steps to do so.

1. In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

1. 
   In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution and I do so.

COMMISSIONER

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[3] [2011] FWAFB 7498 at [19].

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