Damien Charles McLean v Douglas Shire Council

[2023] FWC 1289

[2023] FWC 1289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Damien Charles McLean
v

Douglas Shire Council

(C2023/1401)

COMMISSIONER HUNT BRISBANE, 2 JUNE 2023

Application to deal with contraventions involving dismissal - applicant shown no willingness to prosecute case – non-compliance with Commission directions – application dismissed.

1. On 11 March 2023, Mr Damien Charles McLean has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed by Douglas Shire Council (the Respondent) in contravention of the general protection provisions of the Act. Mr McLean claims he was dismissed because of his race.

1. Mr McLean nominated 6 March 2023 as the date of his dismissal. Accordingly, the application has been made within the 21-day time limit prescribed by the Act.

1. In a Form F8A, the Respondent raised a jurisdictional objection that the Respondent is not a National System Employer and Mr McLean’s application cannot succeed.

1. In correspondence issued to the parties by my chambers on 11 April 2023, I indicated that my preliminary view was that the Respondent is not covered by the Act, and as such, the Commission does not have jurisdiction to issue the Applicant a certificate so that he may pursue the matter in a Court of competent jurisdiction. Accordingly, I directed Mr McLean to file materials as to why he contends that the Respondent is a National System Employer by no later than 13 April 2023.

1. Mr McLean did not file any materials to my chambers by 13 April 2023 and did not seek an extension. On 18 April 2023, I directed Mr McLean to provide an explanation as to why he had not filed materials in accordance with my directions. Mr McLean was informed that failure to provide a suitable explanation may result in his application being dismissed for want of prosecution, in accordance with s.587 of the Act.

1. On 18 April 2023, Mr McLean requested an extension for the filing of materials on medical grounds. I granted the extension and directed Mr McLean to file materials by no later than 26 April 2023.

1. Mr McLean did not file any materials to my chambers by 26 April 2023.

1. On 27 April 2023, I informed the parties the matter would be listed for a Non-Compliance Hearing on 3 May 2023.

1. On 3 May 2023, I conducted a video Non-Compliance Hearing via Microsoft Teams. Mr McLean provided reasons to my satisfaction as to why he had been unable to file material, as directed.  I provided Mr McLean time to consider whether he wished to pursue or withdraw his application in the Commission.  He was made aware of the Respondent’s strong objection to the application proceeding, on account, it says, that the application should have been made in the Queensland Industrial Relations Commission, and not this Commission.

1. By 16 May 2023, my chambers had not received any further correspondence from Mr McLean. Accordingly, I directed him to advise my chambers by no later than 17 May 2023 whether he wished to withdraw or pursue his application.

1. Mr McLean did not issue any correspondence to my chambers by 17 May 2023.

1. On 26 May 2023, I informed the parties that if Mr McLean did not provide a response by 29 May 2023, I would dismiss the application pursuant to s.587 of the Act. Mr McLean has failed to correspond with my chambers.

1. Section 587 of the Act provides 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 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

1. After considering the time afforded to Mr McLean to file materials as to why he contends that the Respondent is a National System Employer, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to s.587(3)(a) of the Act. Mr McLean has demonstrated an unwillingness to prosecute his own application and consequently I find that the application has no reasonable prospects of success.

1. An Order to this effect will be issued with this decision.

COMMISSIONER

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