Christopher Patterson v Craig Almond & the Rainforestation Nature Park Trust

[2024] FWC 3189

[2024] FWC 3189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Christopher Patterson
v

Craig Almond & The Rainforestation Nature Park Trust

(C2024/6722)

DEPUTY PRESIDENT DOBSON BRISBANE, 19 NOVEMBER 2024

Application to deal with contraventions involving dismissal – s587(3)(a) - application dismissed

1. This decision is about an application that was made by Mr Christopher Patterson (Patterson) pursuant to s.365 of the Fair Work Act2009 (Cth) (Act) against an individual and his former employer; Mr Craig Almond & The Rainforestation Nature Park Trust (‘Almond’ and ‘TRNPT’ respectively and collectively the Respondents) on 22 September 2024 which Mr Patterson ultimately failed to prosecute.

Background

1. The matter was allocated to me on 31 October 2024 for determination of the Respondents’ Jurisdictional Objection. On 4 November 2024, I issued directions for the filing of material. The directions included both the date and time for the determinative conference/hearing and a requirement that the Applicant file material by no later than 4:00pm (AEST) on 11 November 2024. Mr Patterson failed to comply with this direction.

1. On 13 November 2024, my Chambers wrote to Mr Patterson reminding him he had not complied with the direction, seeking an explanation and giving him a further 2 days to comply and to explain his failure. Further, he was advised that if he failed to comply again that the Commission will consider dismissing his application on the grounds that there would be no reasonable prospects of success as a result of his failure to prosecute his case. Mr Patterson again failed to comply with this further direction.

1. On 18 November 2024, the Respondents contacted the Commission to enquire if anything further was required of them. My Chambers wrote to the parties noting that Mr Patterson had again failed to comply with the directions and provided a final opportunity to Mr Patterson to make contact with my Chambers by the end of the day and again advised him that if he failed to do so, his application may be dismissed. Again Mr Patterson failed to comply with this third direction.

Consideration

1. The Act provides the circumstances that an application may be dismissed.[1]

1. I note that Act does not limit the reasons when the FWC may dismiss an application.[2] In considering further whether the Applicant’s application should be dismissed on the initiative of the FWC,[3] I am satisfied that Mr Patterson unreasonably and repeatedly failed to comply with directions to file his materials or to respond to any communication from my Chambers.

Conclusion

1. For these reasons, I consider that it is appropriate to dismiss Mr Patterson’s application under s.587(3)(a) for want of prosecution. Pursuant to s.587(3)(a), the Applicant’s general protections application is dismissed. I so order.

DEPUTY PRESIDENT

[1] 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 general protections 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.

[2] Fair Work Act 2009 (Cth) s.587(1).

[3] Ibid s.587(3)(a).

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