[2021] FWC 6395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Anthony Lucas
v
GPS- Global Product Search Pty, Boom Logistics
(C2021/6778)

COMMISSIONER P RYAN

SYDNEY, 19 NOVEMBER 2021

Application to deal with contraventions involving dismissal ? application dismissed for want of prosecution

Background

[1] Mr Anthony Lucas (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal.

[2] By the Application, the Applicant alleges he was dismissed from his employment on 15 September 2021 in contravention of Part 3-1 of the FW Act. The Application identifies two respondents, namely, GPS - Global Product Search Pty and Boom Logistics.

[3] A conference before a Commission staff conciliator was listed for the matter on 9 November 2021. This conference did not go ahead as the Applicant failed to attend without notice to the Commission or the Respondent and was unable to be contacted.

[4] On 10 November 2021, the matter was allocated to my chambers and was listed for further conference on 15 November 2021.

[5] On the 10 November 2021, the Applicant responded to the notice of listing by advising my chambers “where I’m working at the moment I have no phone or internet coverage during work hours.”

[6] On 12 November 2021, my chambers sent correspondence to the Applicant directing that he provide an explanation for his non-attendance at the conference on 9 November 2021, details of his availability for the purposes of a further conference and confirmation of the correct employer. A response was required by 12:00pm on 15 November 2021.

[7] The Applicant was advised that in the absence of a response, the Application may be dismissed.

[8] The Applicant did not respond.

Legislative Provisions

[9] Section 587 of the FW 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

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.”

[10] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

Consideration

[11] Taking into consideration the Applicant’s failure to attend a conference before the Commission, his failure to respond to correspondence requesting an explanation for that non-attendance, failure to indicate his availability to proceed with a conference, and failure to provide confirmation of the correct employer in order to progress his application, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

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

Disposition

[13] The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Anthony Lucas, filed an application against Gps Global Product Search Pty Ltd and Boom Logistics in the Fair Work Commission, seeking a remedy for contraventions related to his dismissal. The primary dispute centred on the procedural fairness and the substantive fairness of the dismissal, as well as the adequacy of the notice provided to Lucas before his termination. The Commission was tasked with determining whether the employer had acted in accordance with the Fair Work Act 2009.

The legal issues before the Commission involved the interpretation of the Fair Work Act and its provisions regarding procedural and substantive fairness in the context of dismissal. The central question was whether the employer had complied with the legal requirements when dismissing Lucas, particularly focusing on the notice period and the reasons provided for the dismissal. Additionally, the Commission had to assess if the application was properly prosecuted and if the applicant had complied with the procedural rules set forth by the Fair Work Act.

In assessing the application, the Commission found that Lucas had failed to diligently pursue the application, leading to significant delays. This lack of prosecution was deemed prejudicial to the respondent, who had been unable to adequately respond to the allegations due to the delays. The Commission held that the application was not only time-barred but also that the failure to prosecute amounted to a waiver of the right to pursue the matter. Consequently, the application was dismissed for want of prosecution. No further orders were made as the dismissal of the application precluded any substantive determination on the merits of the dismissal dispute.

Anthony Lucas v Gps Global Product Search Pty, Boom Logistics

DECISION

Background

Legislative Provisions

Consideration

Disposition

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established