Brett Callender

[2019] FWC 1154

[2019] FWC 1154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Brett Callender
(AB2018/373)

COMMISSIONER WILLIAMS PERTH, 21 FEBRUARY 2019

Application for an FWC order to stop bullying.

[1] This decision concerns an application made by Mr Brett Callender (Mr Callender or the Applicant) under section 789FC of the Fair Work Act 2009 (the Act). The Employer/Principal is the Edith Cowan University Student Guild (the Employer/Principal).

Background

[2] This application was lodged by Mr Callender’s representative on 20 June 2018.

[3] The Employer/Principal filed a response to the application on 28 June 2018 denying the allegations.

[4] On 9 July 2018 the Commission sent the parties a notice of listing advising them that a conference would be held on 31 July 2018. Subsequently the date of this conference had to be changed and on 23 July the parties were invited to advise their availability for the conference to be held on the first week of August 2018.

[5] On 24 July 2018 Mr Callender’s representative emailed the Commission requesting the conference be adjourned to await further developments with respect to the Employer/Principal and their insurer and in order to allow the Applicant to consider his options.

[6] The next day, 25 July 2018, the parties were advised that the conference would be adjourned until such time as the Applicant advised he wished to proceed.

[7] Having heard nothing more from either party on 26 November 2018 the Commission emailed Mr Callender’s representative and enquired as to whether the matter could now be closed.

[8] On the 30 October 2018 Mr Callender’s representative advised he no longer acted for Mr Callender and that he had asked Mr Callender to directly reply to the Commission’s enquiry.

[9] Two weeks later on 14 November 2018 Mr Callender emailed the Commission requesting to extend the adjournment until 7 December 2018 and advising that due to significant developments relating to this matter in previous weeks which will be finalised at the end of November 2018 he would then be in a position to confirm whether to proceed or cease the matter and he would advise accordingly.

[10] On 21 November 2018 two notices of a representative commencing to act were filed on behalf of the person named in Mr Callender’s application and the Employer/Principal (collectively, the Respondents). The nominated representative was common to both parties.

[11] On 27 November 2018 Mr Callender emailed the Commission advising that he had not received a response as he had foreshadowed to date. By reply email the same day the Commission confirmed to Mr Callender that it was waiting for his confirmation of his intention due by 7 December 2018 as he had previously advised. Mr Callender responded the same day confirming receipt of the Commission’s email.

[12] On 29 November 2018 the Respondents’ representative wrote to the Commission applying for Mr Callender’s application to be dismissed arguing that four months had passed since he has taken any step in relation to the matter which was a reasonable period of time for Mr Callender to make a decision whether he wished to proceed with the application or to abandon it. It was submitted it would be unreasonable for the Respondents to remain exposed to the stop bullying application any longer and accordingly these were grounds for the Commission to dismiss the application under section 587 of the Act. This letter was copied to Mr Callender’s email address.

[13] On 3 December 2018 Mr Callender replied to the Respondents’ representative advising the Applicant had been granted an extension by the Commission to advise of his intentions regarding his application by 7 December 2018.

[14] Next on 10 December 2018 Mr Callender emailed the Commission advising that internal conciliation with the Employer/Principal and himself did not progress in addressing his outstanding concerns and a pending claim he says is before the Federal Circuit Court. Consequently he sought a further extension to 28 December 2018. The same day the Commission by email requested the Respondents’ representative advise their view on Mr Callender’s request for a further adjournment. The representative advised the Commission that day by email that he would take instructions and respond thereafter.

[15] Having heard nothing from either party on 8 January 2019 the Commission wrote to Mr Callender directing him to provide submissions by no later than 16 January 2019 in response to the application previously made by the Respondents’ representative on 29 November 2018 for his application to be dismissed.

[16] That day the Respondents’ representative emailed the Commission advising that on 21 December 2018 the parties had reached an in-principle agreement and that the settlement was being documented and that that will occur on 14 January 2019. In those circumstances the representative submitted that Mr Callender should not have to respond by 16 January 2019 as directed by the Commission on the basis that the parties would report further to the Commission by no later than 31 January 2019.

[17] On 11 January 2019 the Commission advised the parties that on the basis of the advice that the parties had reached an in-principle agreement and would report back to the Commission by no later than 31 January 2019 the Commission would extend the time for Mr Callender to respond to the Commission’s 8 January letter to 31 January 2019. The parties were requested to advise the Commission if the matter was resolved prior to that date.

[18] Neither party reported back to the Commission by 31 January 2019.

[19] Mr Callender has not as directed by the Commission provided any submissions in response to the 29 November 2018 application for this matter to be dismissed.

[20] Indeed neither party has made any contact with the Commission since 8 January 2019.

Decision

[21] Mr Callender has self-evidently chosen not to prosecute this application before the Commission.

[22] Mr Callender has failed to comply with the Commission’s direction and has made no submissions in response to the application made by the representative for the employer principle and person named in their letter of 29 November 2018 that his application should be dismissed.

[23] The Commission has broad powers to dismiss an application under section 587 of the Act which is set out below.

“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.”

[24] In the circumstances I agree that it is unreasonable for the Respondents to remain exposed to this application when Mr Callender has had a lengthy period within which to progress the matter but has chosen not to do so.

[25] Consequently this application will now be dismissed for want of prosecution and an order [PR705188] to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR705187>