David Knights v Hudson Hill Pty Ltd

[2023] FWC 1955

[2023] FWC 1955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Knights
v

Hudson Hill Pty Ltd

(U2023/4158)

COMMISSIONER WILSON MELBOURNE, 8 AUGUST 2023

Application for an unfair dismissal remedy – Applicant non-compliant with Directions of the Commission – s.587 application on Fair Work Commissions own initiative – unfair dismissal application dismissed

1. On 15 May 2023, Mr David Knights (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against Hudson Hill Pty Ltd (the Respondent).

BACKGROUND AND CONSIDERATION

1. The matter was initially listed for staff conciliation on Thursday, 15 June 2023 however could not proceed due to the non-attendance of the Applicant.

1. The matter was listed for a second attempt at staff conciliation on Thursday, 6 July 2023 however also could not proceed due to the non-attendance of the Applicant.

1. The matter was allocated to me on Monday, 10 July 2023 for hearing and determination with Directions issued to parties on Tuesday, 11 July 2023. The Directions required the Applicant to file an outline of argument, a statement of evidence and any other documentary material he intended to rely on in support of his application by 4.00PM AEST Wednesday, 19 July 2023.

1. No submissions were filed by the Applicant by 4.00PM AEST Wednesday, 19 July 2023. On Thursday, 20 July 2023 my Chambers wrote to Mr Knights advising that his application was at risk of being listed for non-compliance and directed that he file his materials that day. 

1. As no submissions were filed by the Applicant on Thursday, 20 July 2023, my Chambers wrote to Mr Knights on Friday, 21 July 2023 providing him a final opportunity to file his submissions by 5.00PM AEST that day. The correspondence put Mr Knights on notice that if he did not file his materials in that time that his application would be listed for Non-Compliance Hearing.

1. On Monday, 24 July 2023 my Chambers wrote to parties advising that the Applicant was non-compliant with the Fair Work Commission’s Directions and listing the matter for Non-Compliance Hearing on Friday, 28 July 2023.

1. Both parties participated in the Non-Compliance Hearing. During the Non-Compliance Hearing I considered it appropriate to issue Amended Directions to the parties providing a short additional period of time to the Applicant to file his materials. The Amended Directions required the Applicant to file an outline of argument, a statement of evidence and any other documentary material he intended to rely on in support of his application by 4.00PM AEST Monday, 31 July 2023. 

1. No response or submissions were received from the Applicant by the deadline in the Amended Directions.

1. My Chambers wrote to the Applicant following his non-compliance with the Amended Directions advising the Commission on its own initiative is considering dismissing his unfair dismissal application due to his failure to comply with Directions of the Commission. As Mr Knights did not file details of the case upon which he would rely or the evidence he would present I am not satisfied that his unfair dismissal application has any reasonable prospects of success and consider it will fail for want of prosecution on the Applicants part.

1. Mr Knights was directed to file with the Fair Work Commission, and serve on the Respondent, submissions providing reasons as to why the Fair Work Commission should not dismiss his application, with evidence or other documentary material to support the reasons.  The material was required by no later than 4:00PM AEST on Monday, 7 August 2023. The correspondence also stated that “if you don’t provide your reasons by 4:00PM AEST on Monday 7 August 2023, it is very likely that your case will be dismissed without further notice.”

1. I now turn to determining the s.587 application.

LEGISLATION

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

(b) on application.”

CONCLUSION

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

1. As Mr Knights did not file any submissions in opposition to the s.587 application, I will determine the application on the papers.

1. There is no material presently before the Commission that would persuade me that the Applicant has attempted to defend the s.587 application. I find these circumstances to be an unreasonable failure to comply with a direction of the Commission relating to the Applicant’s application for an unfair dismissal remedy and I am not satisfied that the unfair dismissal application has any reasonable prospects of success.

1. After considering all the material, Mr Knight’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued with this decision.

COMMISSIONER

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