Dean Black v J.R. D'Herville Pty. Ltd

[2023] FWC 2603

[2023] FWC 2603

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Dean Black
v

J.R. D'Herville Pty. Ltd

(U2023/6072)

COMMISSIONER CONNOLLY MELBOURNE, 9 OCTOBER 2023

Application for an unfair dismissal remedy - dismissed pursuant to s.587 of the Fair Work Act 2009.

1. On 6 July 2023, Mr Dean Black (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against J.R. D'Herville Pty. Ltd (the Respondent).

1. A Conciliation was scheduled for 10 August 2023 at 9:15am but did not proceed as the Applicant was uncontactable and did not attend. A member of the Fair Work Commission staff attempted to reach the Applicant by ringing his phone number but was not successful.

1. On 10 August 2023, at 3:13pm, the Applicant emailed the Commission advising that he was unavailable in the morning as he had been in hospital with his partner and further advised that he was scheduled to work night shift and requested another Conciliation conference to be scheduled after 2:00pm.

1. A second Conciliation conference was scheduled on 13 September 2023 at 2:15pm which also did not proceed as the Applicant was again uncontactable and did not attend. A member of the Fair Work Commission staff attempted to contact the Applicant 7 times and left 4 messages, each with no success.

1. The matter was then referred to me for Arbitration.

1. On 18 September 2023, I issued Directions for the filing of material and the matter was listed for a Mention, to be conducted on 26 September 2023 at 2:00pm, and a Hearing, to be conducted on 1 November 2023 at 10:00am. Paragraph [13] of the Directions advised that ‘Compliance with these Directions is mandatory and a failure to comply is likely to disadvantage the party concerned’.

1. A Mention was conducted on 26 September 2023. The Applicant failed to attend. The Applicant was contacted by my Chambers 4 times on his phone number and was also sent an email at 2:05pm advising him that if he did not attend, the Mention would proceed without him. No response was received.

1. The Applicant’s material was due at 4:00pm on Monday, 2 October 2023. The Applicant did not file any material and this direction was not complied with. A follow-up email was sent to the Applicant by my chambers on 3 October 2023 at 10:44am noting that he has not complied with the Directions and the matter will be listed for a Non-compliance Hearing if there is continued non-compliance.

1. In the absence of any response from the Applicant, the matter was subsequently listed for Non-compliance Hearing on 6 October 2023 at 12:00pm. The Applicant did not attend. My Chambers attempted to contact the Applicant 3 times on his phone number and sent an email noting if he did not attend, his application is likely to be dismissed entirely. No response was received.

1. As of 9 October 2023, no material has been filed by the Applicant and the Commission has had no contact with the Applicant since 28 July 2023 where he confirmed his best contact number to the Commission.

1. s.587 of the Act provides:

“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.”

1. In McLeod v Kulgera Trading Company Pty Ltd,[1] Vice President Catanzariti held that s.587 was sufficiently broad to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.

1. In the circumstances that surround this matter, the Applicant has clearly demonstrated an unwillingness to prosecute his case. The principle of ‘a fair go all round’ applies to both employees as well as employers. I am satisfied that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources responding a claim that the Applicant appears to have had no intention of following through.

1. I adopt the approach taken by Vice President Catanzariti and find that “fairness, justice, equity and good conscience”[2] warrant the dismissal of this application.

ORDER

1. The application lodged by Mr Dean Black pursuant to s.394 of the Act on 6 July 2023 is dismissed pursuant to s.587 of the Act.

COMMISSIONER

[1] [2014] FWC 2112.

[2] Ibid [10].

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