Brandon Barnard v Gohard Top End Pty Ltd
[2023] FWC 3422
•22 DECEMBER 2023
| [2023] FWC 3422 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Brandon Barnard
v
Gohard Top End Pty Ltd
(U2023/10004)
| COMMISSIONER RIORDAN | SYDNEY, 22 DECEMBER 2023 |
Application for an unfair dismissal remedy
On 13 October 2023, Mr Brandon Barnard (the Applicant) lodged an application pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act), being an application for an unfair dismissal remedy against Gohard Top End Pty Ltd (the Respondent).
The matter was listed for a Staff Conciliation on 7 November 2023, which the Applicant failed to attend.
The matter was allocated to my Chambers for further dealing on 22 November 2023.
On 27 November 2023, my Chambers issued a Notice of Listing to the parties for a Conference/Directions to be conducted at 10:00 AM NT time on 8 December 2023. This Notice of Listing requested that both parties confirm their appearances in writing to my Chambers ahead of the listing date.
My Chambers received the Respondent’s confirmed appearances, as requested, however, no correspondence was received from the Applicant.
On 7 December 2023, my Chambers sent a follow-up email to the Applicant, requesting that he confirm his appearance for the Conference on 8 December 2023. No response was received from the Applicant.
My Chambers attempted to contact the Applicant on 8 December 2023 at 9:30 AM NT time and 9:58 AM NT time. The Applicant did not answer and voice messages were left.
The Applicant failed to contact my Chambers, by telephone or in writing, and failed to join the Conference line as directed on the Notice of Listing. The Conference was accordingly vacated.
On 8 December 2023, following vacating of the Conference, a ‘non-attendance’ letter was issued to the Applicant granting him 7 days to provide an explanation for his failure to attend the Conference of 8 December 2023.
To date, no written response or return phone call has been received from the Applicant.
Relevant Legislation
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.”
It has been held 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]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various attempts by my Chambers to contact him and has failed to attend a listed conference. The Applicant has shown no willingness to prosecute his case and taken no steps to do so.
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.
After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Mr Barnard’s application for failure to prosecute his case.
Accordingly, the application is dismissed pursuant to section 587 of the Act.
I so Order.
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].
Printed by authority of the Commonwealth Government Printer
<PR769657>
0
0
0