Daniel Hickman v Tenfold Investments Pty Ltd t/a the Brook Bar & Bistro

[2020] FWC 3499

[2020] FWC 3499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Hickman
v
Tenfold Investments Pty Ltd t/a The Brook Bar & Bistro

(U2020/8352)

DEPUTY PRESIDENT MANSINI MELBOURNE, 3 JULY 2020

Application for relief from unfair dismissal - s.587 - application dismissed.

[1] The Applicant in this matter, Daniel Hickman (the Applicant) lodged an application under s 394 of the Fair Work Act 2009 (Cth) (the Act). By that application the Applicant sought an unfair dismissal remedy arising from his dismissal by The Brook Bar & Bistro (the Employer).

[2] The original application was lodged on 17 June 2020 and stated that the Applicant was dismissed effective 6 April 2020. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s 394(3). Based on the information provided by the Applicant, the period of 21 days ended at midnight on 27 April 2020. The original application was therefore filed 51 days outside the 21 day period. In the application, the Applicant claimed that he had requested to retract his resignation and the reason for his delay was that he was awaiting a response from human resources.

[3] On 25 June 2020, the Commission attempted to contact the Applicant on his nominated telephone number to discuss the application but he could not be reached. A message was left requesting a return phone call.

[4] On 26 June 2020, the Commission wrote to the Applicant explaining that his application was filed outside the statutory timeframe and that the time limit will only be extended if the Commission Member is satisfied of “exceptional circumstances” pursuant to s 394 of the Act. That correspondence included a direction to file and serve a witness statement addressing the matters the Commission is required to consider at s 394(3) by 10am on 30 June 2020. The Applicant was advised that failure to comply with the direction may result in the Commission proceeding to determine the matter having regard to the material before it. No response was received from the Applicant by the stipulated time and date.

[5] At 3.39pm on 30 June 2020, an email was sent to the Applicant at his nominated email address which included the history of his non-compliance with the direction of the Commission, the Commission’s unsuccessful attempts to contact the Applicant, the Applicant’s failure to communicate with the Commission and the following:

“[…]

Accordingly, we understand that you do not intend to continue with your application for unfair dismissal.

What do you need to do now?

If you have decided not to continue with your application, you can let us know by reply email or a telephone call to [phone]. This will end your case.

If you wish to continue, then the Commission will need to determine whether to extend the time for filing before you claim can proceed. In that case, you are required to respond to the Commission by no later than 10am on Thursday, 2 July 2020 in which you must:

•  explain to the Commission the reasons for your non-compliance with its Directions of 26 June 2020; and

•  include your signed witness statement, to address the matters specified in the 26 June 2020 Directions.

If we do not hear from you 10am on Thursday, 2 July 2020, your application will be dismissed pursuant to s.587 of the Fair Work Act 2009 (Cth).

If you have any questions, please contact me.”

[6] No response was received from the Applicant by the stipulated time and date.

Whether to dismiss the application

[7] In light of the Applicant’s failure to comply with directions of the Commission and failure to respond, it is open to the Commission to decide whether to exercise its discretion to dismiss the application for want of prosecution pursuant to s.587 of the Act.

[8] 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

(b) on application.”

[9] Though s 587 of the Act does not limit the grounds on which the Commission can, on its own motion (s 587(3)), dismiss an application this discretion should be exercised with caution (though there is some commentary that goes further and suggests it should also only be used “sparingly”, which is a different notion altogether). 1

[10] Section 587 of the Act affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act. 2

[11] The Full Bench in Viavattene v Health Care Australia 3 commented on the circumstances where an applicant evinces “an unwillingness to participate in proceedings”, and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:

“[...] There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”

[12] The Commission is not required to hold a hearing except as provided by the Act (s 593). In the context of an unfair dismissal application, the Commission must not hold a hearing unless it considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter (s 399).

[13] In the circumstances now before me, the application was filed outside the statutory timeframe pursuant to s 394(2). The Commission does not have jurisdiction to hear the merits of an unfair dismissal claim that is not lodged within 21 days after the dismissal took effect. The claim can only proceed if the time limit is extended by a Commission member and the time limit will only be extended if the Commission member is satisfied there are “exceptional circumstances” pursuant to s 394(3).

[14] On the face of the application, the Applicant acknowledged that his claim was filed late. The Applicant has not complied with directions of the Commission in relation to his application. Further, the Applicant has provided no explanation to the Commission for his failure to comply and has not sought any dispensation, responded to the Commission’s attempts to communicate with him or made any effort to prosecute this claim since the application was filed.

Conclusion

[15] I exercise my discretion in this regard in the knowledge that application was filed outside the statutory timeframe and the Applicant has failed to prosecute his claim despite being afforded opportunity to do so.

[16] Accordingly, the application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   See Resta v Myer Pty Ltd [2013] FWC 7080 at 39.

 2   See Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33.

 3   [2013] FWCFB 2532 at [39].