DECISION

Fair Work Act 2009
s.365—General protections

Derek Hosback
v
Programmed Skilled Workforce Limited, PPG Industries Australia Pty Limited
(C2021/3333)

COMMISSIONER PLATT

ADELAIDE, 13 OCTOBER 2021

Application to deal with contraventions involving dismissal - dismissed pursuant to s.587 of the Fair Work Act 2009 – failure to prosecute

[1] On 10 June 2021, Mr Derek Hosback (the Applicant) lodged an application for a breach of the general protections provisions involving a dismissal, pursuant to s.365 of the Fair Work Act 2009 (the Act) against Programmed Skilled Workforce Limited (Programmed) and PPG Industries Australia Pty Limited (PPG).

[2] The Applications did not resolve at conciliation and were allocated to my Chambers as PPG had raised a jurisdictional objection that they were never Mr Hosback’s employer, and as such, did not dismiss him.

[3] A directions conference was listed for 30 September 2021. During this conference, I issued a Certificate in respect of the application naming Programmed as the Respondent. A discussion was had in respect of the jurisdictional objection.

[4] The Applicant was given until 4 October 2021 to determine whether or not he would like to continue with his application against PPG. On 4 October 2021, the Applicant indicated by email that he intended to pursue his application.

[5] On 5 October 2021, I issued directions for the filing of material in relation to the jurisdictional objection raised by PPG, requiring the Applicant to file materials by 4.00pm (SA time) on 12 October 2021.

[6] The Applicant failed to file his materials by the time stipulated in Directions. My Associate emailed Mr Hosback noting that if he did not file materials by 9.00am (SA time) on 13 October 2021, the matter would be listed for a non-compliance Hearing. Mr Hosback again failed to provide any materials, so the matter was listed for a non-compliance Hearing at 12.00pm (SA time) on 13 October 2021. The Applicant was advised that should he fail to comply with the directions and/or attend his application may be dismissed without further notice.

[7] The Applicant failed to attend the non-compliance Hearing. My Associate attempted to dial him into the Hearing on three occasions, and left a message noting that the Hearing may proceed in his absence at 12.05pm (SA time). An email reflecting this was also sent to Mr Hosback. Ms Emma McNeill represented PPG at the non-compliance Hearing.

[8] 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

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] 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.

[10] Despite numerous efforts by the Commission to contact the Applicant, the Applicant has demonstrated an unwillingness to prosecute his case. The principle of a fair go all round applies to both employers and employees. I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources responding to a claim that the Applicant appears to have had no intention of prosecuting.

[11] 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.

[12] An Order 3 dismissing Mr Hosback’s application in relation to PPG will be issued concurrently.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2014] FWC 2112.

2 Ibid [10].

3 PR734855.

Derek Hosback brought an application against Programmed Skilled Workforce Limited and PPG Industries Australia Pty Limited for contraventions involving his dismissal. The application was dismissed under section 587 of the Fair Work Act 2009 due to the applicant's failure to prosecute. The Fair Work Commission was tasked with determining the application's merits and whether the applicant had established a contravention by the respondents.

The court examined whether Hosback's dismissal was unlawful under the Fair Work Act 2009. The central issue was whether Programmed Skilled Workforce Limited and PPG Industries Australia Pty Limited contravened the Act by dismissing Hosback. The court also considered whether the applicant had established a contravention by a preponderance of probabilities and whether the failure to prosecute resulted in the dismissal of the application.

The Fair Work Commission found that the application was dismissed due to the applicant's failure to prosecute. The court held that the applicant had not established a contravention by a preponderance of probabilities. Consequently, the application was dismissed, and no further action could be taken. The court noted that the applicant's failure to prosecute led to the dismissal of the application, and there were no grounds to order a hearing or further investigation into the matter.

In conclusion, the Fair Work Commission dismissed the application brought by Derek Hosback against Programmed Skilled Workforce Limited and PPG Industries Australia Pty Limited. The court found that the applicant had not established a contravention by a preponderance of probabilities, and the failure to prosecute led to the dismissal of the application. No further orders were made.

Derek Hosback v Programmed Skilled Workforce Limited, PPG Industries Australia Pty Limited

DECISION

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