Douglas Lawrence-Plant v NSW Health Service South Eastern Sydney Local Health District

[2024] FWC 2362

[2024] FWC 2362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Douglas Lawrence-Plant
v

NSW Health Service - South Eastern Sydney Local Health District

(U2024/5733)

DEPUTY PRESIDENT EASTON SYDNEY, 3 SEPTEMBER 2024

Application for an unfair dismissal remedy – application dismissed.

1. Mr Douglas Lawrence-Plant was employed by NSW Health Service - South Eastern Sydney Local Health District until he was dismissed on 13 December 2022. On 20 May 2024, Mr Lawrence-Plant filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

1. For the following reasons I am satisfied that Mr Lawrence-Plant’s application has no reasonable prospects of success and should be dismissed. I am also satisfied that Mr Lawrence-Plant’s application should be dismissed for want of prosecution.

1. On the information provided by Mr Lawrence-Plant in the Form F2 Unfair Dismissal Application and his supporting documents indicate that he was employed by a NSW Government department. As such the named respondent is not a National System Employer.

“14 Meaning of national system employer

…

Particular employers declared not to be national system employers

(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

that employer:

is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

is a body established for a local government purpose by or under a law of a State or Territory; or

is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.

…”

1. Commission staff have made many phone calls to Mr Lawrence-Plant and have also sent him many emails. Mr Lawrence-Plant has not responded at all. Mr Lawrence-Plant has also been advised that his application may be dismissed without further notice if he did not respond.

1. Section 587 of the Act provides:

“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.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law. The power under s.587 is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] (Bond) and the cases cited therein).

1. Section 587 also allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c). If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Lawrence-Plant’s application.

1. Mr Lawrence-Plant has also been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite possible that he has abandoned his application.

1. I have separately made an order to this effect (PR778881).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR778880>