Andrew Uncle v Whitehorse Truck Centre (AP Eagers)

[2018] FWC 7563

[2018] FWC 7563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Andrew Uncle

v

Whitehorse Truck Centre (AP Eagers)

(C2018/6097)

Deputy President Beaumont PERTH, 14 DECEMBER 2018

Application to deal with contraventions involving dismissal - dismissed pursuant to s 587 of the Fair Work Act 2009.

Background

1. On 30 October 2018, Mr Andrew Uncle (Mr Uncle) submitted an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal (the Application).  Mr Uncle commenced employment with Whitehorse Truck Centre (AP Eagers) Pty Ltd (Whitehorse) on 22 August 2018, and was dismissed on 3 October 2018.  

1. Directions were issued to the parties on 16 November 2018 (the First Directions).  Mr Uncle was directed to file and serve written submissions, witness statements, and any other documentary material upon which he wished to rely by Thursday, 29 November 2018.  Links to the Commission’s website, and other information was provided to the parties to assist in the preparation of these materials. 

1. A Mention was listed for 22 November 2018. Both Mr Uncle and Mr Alex Duncan, General Manager of Whitehorse (Mr Duncan), presented.  Programming of the matter was discussed with both parties. 

1. By 29 November 2018, there had been no documents filed and served by Mr Uncle in accordance with the First Directions.  On 5 December 2018, Mr Uncle was notified that he had not complied with the First Directions, and had not requested an extended period of time in which to file the documents.  He was directed that if he intended to provide the required documents an extension of time should be sought (the Second Directions).  No such request or application was made. 

1. Given Mr Uncle’s ongoing non-compliance with the First Directions, and then the Second Directions, a Notice of Listing was issued for a Mention on 12 December 2018.  The Applicant did not appear for the Mention listed, notwithstanding my Associate calling Mr Uncle four times; once at 13:57, once at 13:58, once at 14:00, and once at 14:02.  Voicemails were left for Mr Uncle at 13:57hrs and 14:00hrs.

2. In light of the non-compliance with the First and Second Directions, and Mr Uncle’s non-attendance at the Mention on 12 December 2018, the parties were notified that I was considering dismissing the Application under s 587 of the Act. Parties were directed to file with Chambers and serve on the other side any submissions, witness statements or other material upon which they wished to rely as to why the Application should, or should not be dismissed, by 17:00 on 13 December 2018 (the Third Directions).  It is observed that no material was received from Mr Uncle, and Whitehorse simply sent an email requesting that the Application be dismissed. 

Legislation

1. Section 587 of the Act 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.

1. Section 336 of the Act sets out the ‘Objects’ of Part 3-1, which relevantly include: (a) to protect workplace rights; and (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this part.

1. In Rebecca Tomas v Symbion Health,[1] Commissioner Gooley (as she then was) made the following observation with respect to the operation of s 587:

[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.

Consideration

1. Mr Uncle filed a Form F8 Application that did not elucidate the contravention of any of the protections that are listed at Question 3.2 of that Form.  Further, the written commentary provided on the Form F8, does not make clear what the alleged contravention was. 

1. In light of Mr Uncle’s non-compliance with the First, Second, and Third Directions, his non-attendance at the Mention on 12 December 2018, and the fact that he has not responded to the Commission’s repeated attempts to contact him, I have decided to dismiss his application.

1. While the Objects of Part 3-1 clearly identify that an object is to protect workplace rights and provide effective relief, this cannot possibly be achieved in circumstances where an applicant does not comply with the Directions of the Commission, or attend a scheduled Mention. 

1. In the decision of McLeod v Kulgera Trading Company Pty Ltd,[2] the Vice President, relying on s 587(3)(a), dismissed an application under s 365 on the basis of the applicant’s non-attendance at a scheduled teleconference, and a failure to make contact with the Commission.

1. I find that Mr Uncle’s non-participation in the Commission’s processes has already required Whitehorse to expend resources in responding to a claim, which it appears Mr Uncle does not have any intention of following through.  Further, I find that Mr Uncle has been given ample opportunity to make contact with the Commission to seek an extension of time in which to comply with the First and Second Directions, but has not done so. 

1. For the above reasons I find that the application should be dismissed.  Issued concurrently with this decision is an Order to that effect.[3]

DEPUTY PRESIDENT

<PR703111>

[1] [2011] FWA 5458.

[2] [2014] FWC 2112.

[3] PR703139

Printed by authority of the Commonwealth Government Printer