Corey Groundwater v Mungalli Creek Dairy Pty Ltd
[2024] FWC 2613
•23 SEPTEMBER 2024
| [2024] FWC 2613 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Corey Groundwater
v
Mungalli Creek Dairy Pty Ltd
(C2024/5473)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 23 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal – s587(3)(a) - application dismissed
This decision relates to an application by Mr Corey Groundwater (the Applicant) pursuant to s.365 of the Fair Work Act2009 (Cth) (Act) against his former employer, Mungalli Creek Dairy Pty Ltd (the Respondent) filed on 13 June 2024.
Background
The matter was allocated to me on 4 September 2024 for determination of the Respondent’s Jurisdictional Objection. On 6 September 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 13 September 2024. Mr Groundwater failed to comply with this direction.
On 16 September 2024, the Respondent contacted Chambers to enquire whether Mr Groundwater had filed his material as directed. The following day my Chambers wrote to Mr Groundwater as follows:
“Dear Mr Groundwater
Directions were issued on 6 September 2024.
Paragraph [4] of the Directions required you to file your material by no later than 4:00pm AEST on 13 September 2024. At the time of writing, no materials have been filed as directed and there has been no request for an extension to file submissions. Accordingly, the Deputy President directs you to provide your material, accompanied by an explanation for your apparent failure to comply with the directions by no later than 4:00pm AEST on 18 September 2024.
In the absence of any material filed by you, the matter may be determined without further reference to you, and the Commission will consider dismissing the application pursuant to s.587 of the Fair Work Act 2009. If the Commission makes a decision to dismiss your matter, a publicly available decision must be published on the Commission’s website.”
No response was received from Mr Groundwater.
My Chambers again wrote to Mr Groundwater on 19 September 2024, noting that he had not responded to the previous correspondence from Chambers as follows:
“Dear Mr Groundwater
It is noted that we did not receive a response from you to our correspondence dated 17 September 2024, which required a response from you before 4:00pm AEST on 18 September 2024. It is the Deputy President’s current view that your general protections application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your claim. The Respondent has now formally requested that the matter be dismissed as per the attached letter.
If you wish to proceed with your application, you must make contact with us by 4:00pm (AEST/QLD) today. If we do not hear from you by that time, your application may be dismissed without further notice to you. You may contact us by email ([email protected]).
I note that if you do not discontinue your application and the Commission dismisses it because you are not pursuing your application, a publicly available decision must be published on the Fair Work Commission’s website.
Alternatively, if you do not wish to proceed with your application you can inform us, by reply email, that you wish to discontinue your application.
Consideration
Section 587 of the Act is 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 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.”
I note that Act does not limit the reasons when the FWC may dismiss an application[1] and further that an application made under s.365 may not be dismissed on the basis it is frivolous or vexatious,[2] nor because it has no reasonable prospects of success.[3] In considering further whether the Applicant’s application should be dismissed on the initiative of the FWC,[4] I am satisfied that the Applicant unreasonably failed to comply with the requirement to file his materials in accordance with the directions. I consider that the failure was unreasonable for the following reasons:
(A)The Applicant has repeatedly failed to offer any reasonable explanation for his failure to comply with the directions.
(B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress his non-compliance but has failed to do so.
My discretion to dismiss the Applicant’s general protections application under s.587(3)(a) has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to respond to communications from my Chambers, to provide a reasonable explanation for his failure to comply with directions, his repeated failure to file materials and to comply with those directions.
Conclusion
For these reasons, I consider that it is appropriate to dismiss the Applicant’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.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) s.587(1).
[2] Ibid s587(2)(a).
[3] Ibid s587(2)(b).
[4] Ibid s.587(3)(a).
Printed by authority of the Commonwealth Government Printer
<PR779500>
0
0
0