Andrew Levalds v Lumlan and Associates Services Pty Ltd T/A Go to Court

[2017] FWC 6043

[2017] FWC 6043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Levalds
v
Lumlan and Associates Services Pty Ltd T/A Go To Court
(U2017/704)

DEPUTY PRESIDENT BULL PERTH, 11 DECEMBER 2017

Application for an unfair dismissal remedy. Application to amend named respondent, failure to prosecute application, matter dismissed.

[1] On 24 January 2017, Mr Andrew Levalds (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) alleging that he had been unfairly dismissed by Lumlan and Associates Services Pty Ltd trading as Go To Court (the respondent).

[2] An employer response objecting to the application on the basis that Mr Levalds was not dismissed but had resigned from his employment was filed under the name of Lumlan and Associates Services & Anthony Martin trading as Go To Court by a Tony Martin who described his capacity to file the employer response as a former partner of Go To Court.

Background

[3] The matter was subject to telephone conciliation on 27 February 2017, before a Fair Work Commission (Commission) conciliator where an in-principle settlement was apparently reached. Following the failure of the parties to finalise the in-principle settlement, the matter was referred for formal proceedings before the Commission.

[4] On 26 May 2017 the applicant wrote to the Commission seeking, pursuant to s.586 of the Act, to have the name of the employer amended to Go to Court Franchising Pty Ltd to reflect what he now alleged to be the true identity of his previous employer.

[5] On 29 May the applicant sought to again amend the name of the respondent employer to his unfair dismissal application, this time to Go to Court Lawyers (Partnership).

[6] Also on 29 May 2017, the named respondent employer, Lumlan and Associates Services Pty Ltd trading as Go To Court, through its sole director and shareholder Mr Martin, advised the Commission that it objected to the proposed amendment, stating:

“As per his contract of employment, the entity responsible for his pay entitlements was my company Lumlan & Associates Services Pty Ltd (of which I am the sole director and shareholder of same) and I as equity partner of (I formally owned part of the law firm) and trading as the law firm Go To Court at the time was his employer.”

[7] In the same advice Mr Martin advised that he was no longer solvent and would shortly be placed into bankruptcy with a trustee appointed to manage his personal financial affairs which would result in him being disqualified from being a director of the named respondent. He also advised that the respondent employer was also no longer solvent and he expected the company to be placed into liquidation. 1

[8] Further correspondence from the applicant on 29 May 2017, confirmed that he wanted to pursue his application to amend the name of the respondent to Go To Court Lawyers (Partnership).

[9] On 30 May 2017, a directions teleconference took place before the Commission. Mr Levalds and Mr Martin attended. At the conclusion of the conference Mr Levalds advised that he would notify the relevant parties of his intention to amend the named respondent and serve his amended application on them.

[10] The Commission subsequently directed the parties to file submissions and witness statements in respect of the application to amend the name of the respondent, with the matter set down for a hearing for 18 August 2017.

[11] The applicant attended the hearing however there was no attendance by the named respondent employer or any other party 2. At the hearing the applicant withdrew his application to amend the name of the respondent from Lumlan & Associates Services Pty Ltd to Go To Court Lawyers (Partnership), as it was brought to his attention that Go To Court Lawyers (Partnership) may not be a national system employer or have the status of a legal entity. The applicant undertook to make the necessary enquiries and provide the Commission with further details regarding whom he believed was the correct employer by seeking leave to amend the named respondent employer in his application.

[12] Despite the applicant’s undertaking, the applicant has not sought leave to amend his application or initiated any contact with the Commission.

[13] On 28 September 2017, the Commission contacted the applicant via email, alerting him that he had not provided the further details he had undertaken to provide. He was directed to file any supporting material in respect of his application by 5.00pm, 4 October 2017, and notified that failure to do so may result in his application being dismissed.

[14] The applicant sent a reply to the Commission that evening advising that he was away from Perth on an ADF Service Investigators course, not expecting to return until the end of October 2017. 3

[15] On 12 October 2017, the Commission sent further correspondence to the applicant, directing him to file any request to amend the name of the respondent employer, with supporting grounds by 30 October 2017. He was again advised that failure to comply may result in his application being dismissed. The Commission correspondence noted:

● The details of training course you have provided to justify your delay in filing an amended application indicate the course commenced on 11 September 2017. The course finishes on 23 October 2017 and no reason has been provided as to why you state you will not be back in Perth until the end of October.

● Since 18 August and until 28 September when the Commission corresponded with yourself, you have made no effort to contact the Commission to advise that you were not in a position to file your amended application, nor have you in your 28 September correspondence advised when this will be done other than to state you will be back in Perth at the end of October.

[16] To date the applicant has not responded to the correspondence, no further material has been filed, nor has the applicant otherwise contacted the Commission regarding his application.

Dismissing applications

[17] 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.”

[18] The applicant has advised the Commission that Lumlan and Associates Services Pty Ltd trading as Go To Court was incorrectly named in his application as the respondent employer. He has notified the Commission that he seeks to amend the application to correctly identify the respondent employer. The applicant initially sought to amend the named respondent to Go to Court Franchising Pty Ltd and subsequently to Go To Court Lawyers (Partnership). The last request was withdrawn at the hearing on 18 August 2017, with a further request to be given time to name a fourth employer as the respondent.

[19] The applicant has failed to provide any further details to the Commission regarding the correct identity of the respondent employer against whom he seeks to bring these proceedings, despite directions from the Commission that he do so. No explanation has been provided by the applicant to the Commission for the latest lack of response to Commission correspondence.

[20] The application as it currently stands is made against an entity which has been placed into liquidation and which, on the applicant’s own submissions was not his employer.

[21] The applicant was directed to file with the Commission any request to amend the name of the respondent employer, with supporting material, by 30 October, some 6 weeks ago, but he has failed to do so. The applicant has not contacted the Commission to provide any explanation regarding his failure to comply with the directions. The applicant was twice put on notice that a failure to comply with Commission directions may result in the dismissal of his application.

[22] In Peter Viavattene v Health Care Australia 4 the Full Bench stated at [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).”

[23] In the Full Bench decision of L. Sayer v Melsteel Pty Ltd 5 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.

[24] Based on the circumstances outlined above, including that the applicant states that the currently named respondent employer was not the true employer at the time of his alleged dismissal, I am satisfied that the applicant has failed to prosecute his application. In accordance with s.587 of the FW Act, the application is dismissed for want of prosecution and on the basis it has no reasonable prospects of success.

DEPUTY PRESIDENT

 1   Mr Martin subsequently provided a copy of the resolution to wind up Lumlan & Associates Services Pty Ltd and the Notice of Consent to Act as Liquidator on 12 June 2017

 2   Persons understood to make up the partnership of Go To Court Lawyers (Partnership) were advised of the hearing listing

 3   The details provided indicated the training was to occur 11 September to 23 October 2017

 4  [2013] FWCFB 2532

 5   [2011] FWAFB 7498 at [19]

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