Clayton Henshaw v Lancaster Property Maintenance Pty Ltd
[2023] FWC 2731
•19 OCTOBER 2023
| [2023] FWC 2731 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Clayton Henshaw
v
Lancaster Property Maintenance Pty Ltd
(C2023/5204)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 19 OCTOBER 2023 |
Application to deal with contraventions involving dismissal – failure to comply with Directions – failure to contact the Commission – application dismissed
Overview
On 25 August 2023, Mr Stephen Gaffney (Applicant’s Representative) filed an application on behalf of Mr Clayton Henshaw (Applicant) pursuant to s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being a general protections involving dismissal application (Application). The Respondent to the Application is Lancaster Property Maintenance Pty Ltd.
The Respondent raised the following objections to the Application:
a) the Application has been filed out of time;
b) the Applicant was not an “employee” of the Respondent for the purposes of Part 3-1 of the Act;
c) the Respondent is not an “employer” of the Applicant for the purposes of Part 3-1 of the Act;
d) the Applicant was not “dismissed” by the Respondent within the meaning of that term under s.12 and s.386 of the Act.
Direction [3] of the Directions issued on 18 September 2023 reads:
“[3] By 4.00pm AEDT on Monday, 16 October 2023, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in opposition to the objections raised by the Respondent.
Neither the Applicant (nor his Representative) complied with Direction [3].
On 17 October 2023, the following email was sent to the Applicant’s Representative (Show Cause Email):
“Dear Mr Gaffney
Re: C2023/5204 - Clayton Henshaw v Lancaster Property Maintenance Pty Ltd
I refer to the matter above.
Background
On 18 September 2023, the Fair Work Commission issued Directions in this matter.
Order 3 of those Directions reads as follows:
[3] By 4.00pm AEST on Monday, 16 October 2023, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in opposition to the objections raised by the Respondent.
To date, Chambers has not received any materials in compliance with Order 3.
Further directions regarding show cause
In view of the foregoing, the Deputy President directs as follows:
[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Today, 17 October 2023.
[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.
Yours faithfully
[Associate]”
Chambers received no correspondence or other communication from the Applicant’s Representative in relation to the Show Cause Email.
On 18 October 2023, the following email was sent to the Applicant (Further Show Cause Email):
“Dear Mr Henshaw
Re: C2023/5204 - Clayton Henshaw v Lancaster Property Maintenance Pty Ltd
I refer to the matter above.
Background
On 18 September 2023, the Fair Work Commission issued Directions in this matter.
Order 3 of those Directions reads as follows:
[3] By 4.00pm AEST on Monday, 16 October 2023, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in opposition to the objections raised by the Respondent.
To date, Chambers has not received any materials in compliance with Order 3.
Further directions regarding show cause
In view of the foregoing, the Deputy President directs as follows:
[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Today, 18 October 2023.
[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.
Yours faithfully
[Associate]”
Chambers received no correspondence or other communication from the Applicant in relation to the Further Show Cause Email.
Legislative Provisions
Section 587 of the Act reads:
“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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:
“[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.”
Consideration
As neither the Applicant or his Representative have made any attempt to comply with Direction [3] and/or the Show Cause Emails, and have both failed to contact the Commission or otherwise explain the Applicant’s non-compliance, I have decided to dismiss the Application.
In dismissing the Application, I find that the Applicant and his Representatives non-compliance with Direction [3], and the Show Cause Emails, is wholly unexplained, and wholly unsatisfactory. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant and his Representative have each been provided with an opportunity to prosecute the Applicant’s case, and/or contact the Commission to explain the Applicant’s non-compliance, but have instead (including by their silence) expressed a clear disinterest in process, procedure and the prosecution of the Applicant’s client’s case.
Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.
DEPUTY PRESIDENT
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