Brent Shaw v Ma Services Group

[2021] FWC 1211

[2021] FWC 1211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brent Shaw
v
Ma Services Group
(U2020/14608)

COMMISSIONER BOOTH BRISBANE, 5 MARCH 2021

Application for an unfair dismissal remedy - application dismissed under s.587.

[1] On 9 November 2020, Mr Brent Shaw (the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Ma Services Group (the Respondent).

[2] The matter was listed for conciliation on 4 December 2020 before a staff conciliator. The conciliation did not proceed at the request of the Applicant, who indicated he did not wish to participate in a conciliation and requested for the matter to proceed to arbitration.

[3] The matter was allocated to my Chambers on 8 December 2020 for determination. I used Directions for the filing of material on 10 December 2020. The Directions required the Applicant to file its material by 4 February 2021 and the Respondent to file its material by 18 February 2021.

[4] On 10 December 2020, I also issued a Notice of Listing for a Mention and Conference to be held on 1 February 2021. The Applicant and Respondent attended the Mention and Conference.

[5] The Applicant failed to file his material in accordance with the Directions issued on 10 December 2020. On 8 February 2021, the Respondent sent correspondence to Chambers noting the Applicant failed to file his material in accordance with the Directions and seeking that the Applicant’s application for unfair dismissal remedy be dismissed.

[6] At approximately 8:54 am AEST on 9 February 2021, my Associate attempted to contact the Applicant by telephone and was unable to leave a voice message.

[7] At 9:05 am AEST on 9 February 2021, correspondence was sent from Chambers noting the Applicant’s failure to comply with the Directions of the Commission and directing him to provide his material by 16 February 2021.

[8] The Applicant did not file his material by 16 February 2021. On 17 February 2021, the Respondent sent correspondence noting the Applicant failed to file his material in accordance with the amended Directions.

[9] At approximately 11:59 am AEST on 17 February 2021, my Associate attempted to contact the Applicant by telephone and left a message, that was converted to a text message, requesting the Applicant return Chambers’ telephone call.

[10] Correspondence was sent at 12:07 pm AEST on 17 February 2021 directing the Applicant to provide an update by close of business on 19 February 2021. The Applicant was also put on notice that if no correspondence was received, the file may be dismissed under s.587 of the Act.

[11] At approximately 2:34 pm AEST on 23 February 2021, my Associate attempted again to contact the Applicant and left a message, that was converted to a text message, requesting the Applicant return Chambers’ telephone call.

[12] No further correspondence or telephone contact has been received from the Applicant to date.

[13] 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.”

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

[15] 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

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various correspondence from Chambers. The Applicant has failed to provide any reasonable explanation to the Commission for his failure to comply with directions. The Applicant has shown no willingness to prosecute his case and taken no steps to do so.

[17] 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.

[18] 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. An Order to this effect will issue accordingly.

COMMISSIONER

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 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].