Clive Ryder v Cundaline Resources Pty Ltd Summary

[2024] FWC 1480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Clive Ryder
v

CUNDALINE RESOURCES PTY LTD

(U2024/4069)

DEPUTY PRESIDENT EASTON

SYDNEY, 14 JUNE 2024

Application for an unfair dismissal remedy

Mr Clive Ryder was employed by Cundaline Resources Pty Ltd until he was dismissed on 20 March 2024. On 9 April 2024, Mr Ryder filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

A conciliation conference was scheduled on 8 May 2024 however Mr Ryder did not attend.

On 13 May 2024, correspondence was sent to Mr Ryder in relation to his non-attendance and he was required to respond by 20 May 2024. Mr Ryder did not respond to this correspondence.
Further correspondence was sent to Mr Ryder on 6 June 2024 and he was required to respond by 5:00pm on 11 June 2024. Mr Ryder was also advised that his application may be dismissed without further notice if he did not respond. An SMS was also sent to Mr Ryder telling him that an important email had been sent. Mr Ryder did not respond to this correspondence.

To date, Mr Ryder has not responded to any of the Commission’s attempts to contact him.

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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Ryder’s application. Mr Ryder has also been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite possible that he has abandoned his application.

For these reasons I have decided to dismiss Mr Ryder’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR775743).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Clive Ryder, filed an application for an unfair dismissal remedy against his former employer, Cundaline Resources Pty Ltd, under section 394 of the Fair Work Act 2009. The application was dismissed by the Fair Work Commission on the basis that Mr Ryder had failed to engage with the proceedings, resulting in the dismissal of his application without further notice. The case was heard by Deputy President Easton, who exercised the power granted under section 587 of the Act to dismiss an application that has been abandoned by the applicant.

The primary legal issue in this case was whether the Commission had the authority to dismiss Mr Ryder's application for an unfair dismissal remedy due to his failure to respond to correspondence and attend the scheduled conciliation conference. The Fair Work Act provides that the Commission may dismiss an application if it appears that the applicant has ceased to pursue or participate in the proceedings they initiated. Deputy President Easton considered whether Mr Ryder's conduct constituted an abandonment of his application and whether the dismissal was justified under section 587 of the Act.

Deputy President Easton concluded that Mr Ryder's failure to respond to multiple correspondences and his non-attendance at the scheduled conciliation conference demonstrated that he had ceased to pursue his application. Given that Mr Ryder had been informed of the potential consequences of not responding and had still not engaged with the proceedings, the Deputy President determined that the application should be dismissed on the basis of want of prosecution. This decision was made under the authority granted by section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative, provided that procedural fairness has been observed.

In light of the above, the Deputy President dismissed Mr Ryder's application for an unfair dismissal remedy on his own initiative, pursuant to section 587(3)(a) of the Fair Work Act. An order was made to this effect, concluding the proceedings without further action.

Clive Ryder v Cundaline Resources Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established