Donald Silk v Goldmaster Pty Ltd ATF the B.D. Service Trust

[2020] FWC 5846

[2020] FWC 5846

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donald Silk
v
Goldmaster Pty Ltd ATF The B.D. Service Trust
(U2020/11684)

DEPUTY PRESIDENT BEAUMONT PERTH, 6 NOVEMBER 2020

Application for an unfair dismissal remedy - decision under s 587 to dismiss an application - no reasonable prospect of success - non-compliance - non-attendance.

[1] On 28 August 2020, Mr Donald Silk (the Applicant) filed an application for unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act). Subsequent to making his application, the Applicant has not complied with directions and has failed to attend a directions hearing.

[2] Directions were issued on 1 October 2020 concerning the programming of the matter. The directions set out the potential consequences of non-compliance. However, the Applicant did not comply with the directions.

[3] The Applicant’s non-compliance was raised with him by email on 12 October 2020. The Applicant was informed that should he require an extension of time to comply with the directions, such request was to be made by 13 October 2020. Further, the Applicant was informed that if no correspondence was received, the matter would be listed for a non-compliance hearing. Again, the Applicant was referred to ss 587 and 399A of the Act, and the potential for his application to be dismissed if he did not comply with the directions.

[4] Having received no response for the Applicant, a decision was made to schedule a directions hearing by telephone on 2 November 2020, with a view to stepping the Applicant through the process associated with an unfair dismissal application. The Applicant was directed to attend and was informed of the implications arising from non-attendance. Regrettably, the Applicant did not attend the directions hearing, and notwithstanding three telephone calls and two follow-up SMS text messages – the Applicant has been uncontactable.

[5] It follows that the Commission will now consider whether or not to dismiss the application, pursuant to s 587 of the Act, on the basis that the application has no reasonable prospects of success. Whilst both Applicant and Goldmaster Pty Ltd ATF The B.D. Service Trust (the Respondent) were notified that the matter was listed for hearing, and directions were issued, the Applicant again failed to comply with directions. Neither party sought to be heard on the matter and I decided it was appropriate to determine the matter on the papers. Further, I permitted a correction to the name of the Respondent under s 586 of the Act.

[6] The Commission has power to dismiss an unfair dismissal application on its own initiative.

[7] It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative. 1

[8] Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal. 2 That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.3

[9] The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states:

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

[10] Whenever exercising the power to dismiss an application under either section, s 578 is relevant. It provides:

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Consideration

[11] Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Since the matter was allocated to Chambers, the Applicant has done nothing to prosecute his case. His non-compliance with directions and absence of cogent reasons for the same, failure to attend the scheduled mention/directions hearing, and non-responsive to the Commission considering the dismissal of his application, have led me to this conclusion.

[12] It follows that in the circumstances of this matter, I consider the Applicant’s application has no reasonable prospects of success and, therefore, dismiss his application pursuant to s 587(1)(c).

[13] An Order 4 to this effect is issued concurrently.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724174>

 1   Peter Viavattene v Health Care Australia[2013] FWCFB 2532 [39].

 2   John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

 3 Ibid [31].

 4   PR724363.