Damien Charles McLean v Douglas Shire Council

[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.

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.

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.

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.

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.

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.

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.

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

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

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.

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.

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

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.

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

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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Damien Charles McLean versus Douglas Shire Council, the Fair Work Commission (FWC) was tasked with adjudicating a claim made by Mr McLean under section 365 of the Fair Work Act 2009. Mr McLean alleged that he had been dismissed by the Douglas Shire Council on racial grounds, and he filed his application within the statutory 21-day limit. The council contested the FWC's jurisdiction, asserting it was not a National System Employer, which is a prerequisite for FWC intervention under the Act. The case unfolded with a series of procedural steps where Mr McLean failed to comply with FWC directions, leading to the dismissal of his application.

The primary legal issue the FWC had to resolve was whether it had jurisdiction to hear Mr McLean's claim against the Douglas Shire Council. This hinged on whether the council qualified as a National System Employer, a classification necessary for FWC jurisdiction under the Act. Additionally, the FWC had to assess Mr McLean's compliance with procedural directions and determine if his failure to meet these obligations justified the dismissal of his application under section 587 of the Act.

The FWC found that Mr McLean had not provided any material to support his claim that the council was a National System Employer, despite multiple opportunities to do so. Mr McLean's repeated non-compliance with FWC directions, including extensions granted on medical grounds, indicated a lack of willingness to prosecute his case. Consequently, the FWC concluded that Mr McLean's application had no reasonable prospects of success. The FWC exercised its discretion under section 587(3)(a) of the Act to dismiss the application on its own initiative, as Mr McLean's conduct demonstrated a disinclination to proceed with his claim.

The FWC issued an order dismissing Mr McLean's application for contraventions involving dismissal. The order explicitly stated that the application was dismissed due to Mr McLean's failure to prosecute the case and non-compliance with FWC directions. This decision underscored the importance of adhering to procedural requirements in FWC proceedings and highlighted the consequences of failing to do so.

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