David Stewart v Swissport Australia

[2024] FWC 1870

[2024] FWC 1870

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

David Stewart
v

Swissport Australia

(C2024/2563)

DEPUTY PRESIDENT SLEVIN SYDNEY, 17 JULY 2024

Application for an unfair dismissal remedy – s.587 application to dismiss.

1. This decision arises in an application brought by Mr David Stewart under section 739 of the Fair Work Act 2009 (the Act). The Respondent is Swissport Australia Pty Ltd (Swissport). Mr Stewart sought the assistance of the Commission to resolve a dispute under a dispute settling term in an enterprise agreement. Swissport challenged the jurisdiction of the Commission to deal with the dispute.

1. Swissport applies under section 587(1)(c) of the Act that Mr Stewart’s application be dismissed because Mr Stewart unreasonably failed to comply with directions relating to the application, specifically, amended directions issued to parties on 27 May 2024 and unreasonably failed to attend the case management conference held on 21 June 2024. Swissport also submits that Mr Stewart failed to comply with the Commission’s directions and has not filed any material in response to the Jurisdictional Objection, the Applicant has no reasonable prospects of success.

1. Mr Stewart filed his application on 24 April 2024. A conference was conducted on 14 May 2024 and the matter was unable to be resolved by conciliation. Mr Stewart elected to have the dispute arbitrated. Swissport’s jurisdictional issue was to be determined first. On 22 May 2024, directions were issued requiring Swissport to file and serve material in support of its jurisdictional objection by close of business on 28 May 2024. Mr Stewart was required to file and serve his material in reply by close of business on 11 June 2024. Swissport was to file its reply by close of business on 20 June 2024. The matter was listed for a case management conference on 21 June 2024 and hearing on 27 June 2024. The directions were amended at Swissport’s request on 27 May 2024 directing Swissport to file its material by 31 May 2024 and Mr Stewart to file and serve his material by 14 June 2024.

1. Swissport filed and served its material on 31 May 2024. Mr Stewart did not file nor serve any material on 14 June 2024. On 18 June 2024, in response to an email from Swissport’s legal representative, my Chambers wrote to the parties confirming that the Commission was not in receipt of any material or a request for an extension from Mr Stewart. The email stated that all outstanding material was to be provided by no later than close of business that day, or that Mr Stewart should otherwise make a formal request for an extension to the Commission. Mr Stewart did not respond.

1. On 21 June 2024, the case management conference was held. Mr Stewart did not attend. The hearing on 28 June 2024 was vacated. Swissport foreshadowed making application to have the matter dismissed. Directions were issued on that day requiring it to do by close of business 28 June 2024. Mr Stewart was directed to file a response to the application to dismiss by 3 July 2024. The directions indicated that if no response was received the application to dismiss would be dealt with on the papers. Swissport filed its application on 28 June 2024. Mr Stewart did not file any material in response.

1. This decision deals with Swissport’s application that the matter be dismissed. The matter was dealt with in the papers.       

1. The Fair Work Commission may dismiss an application under s. 587 of the Act. Section 587(1)(c) gives the Commission a discretion to dismiss an application if satisfied that the application has no reasonable prospects of success. The Commission’s power is not limited to the matters listed in s. 587(1) and it may dismiss a matter for want of prosecution.

1. Mr Stewart’s failure to engage with the Commission in support of his application means his application has no reasonable prospects of success. Given his failure to provide any communication explaining his conduct I find his conduct to be unreasonable. Consequently, I will exercise my discretion under s. 587 to dismiss Mr Stewart’s application. I do so as Mr Stewart’s repeated failures to attend and comply with directions suggests not only that it has no reasonable prospects of success but that he has no intention of prosecuting his application despite being given every opportunity to do so.

1. Mr Stewart’s application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR777087>