Dylan Campbell v Van Damme Plant Hire Pty Ltd

[2024] FWC 1787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dylan Campbell
v

Van Damme Plant Hire Pty Ltd

(U2024/5386)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 JULY 2024

Application for an unfair dismissal remedy

Mr Dylan Campbell was employed by Van Damme Plant Hire Pty Ltd until he was dismissed on 4 May 2024. On 13 May 2024, Mr Campbell filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

A conciliation conference was scheduled on 14 June 2024 however Mr Campbell did not attend.

On 20 June 2024, correspondence was sent to Mr Campbell in relation to his non-attendance and he was required to respond by 27 June 2024. An SMS was also sent to Mr Campbell telling him that an important email had been sent. Mr Campbell did not respond to this email.

Further correspondence was sent to Mr Campbell on 1 July 2024 and he was required to respond by 5:00pm on 4 July 2024. Mr Campbell was also advised that his application may be dismissed without further notice if he did not respond. An SMS was sent to Mr Campbell telling his that an important email had been sent. Mr Campbell did not respond to this correspondence.

To date, Mr Campbell has not responded to any of the Commission’s attempts to contact him.

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.

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. 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]).

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

For these reasons I have decided to dismiss Mr Campbell’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR776784).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Dylan Campbell v Van Damme Plant Hire Pty Ltd, the applicant, Mr Dylan Campbell, sought a remedy for unfair dismissal following his termination of employment on 4 May 2024. The application was filed on 13 May 2024, and a conciliation conference was scheduled for 14 June 2024. However, Mr Campbell did not attend this conference. Despite multiple attempts by the Commission to contact Mr Campbell, including sending correspondence and SMS notifications, he failed to respond. The legal issues that the Fair Work Commission (FWC) needed to decide centered on whether the application could be dismissed under section 587 of the Fair Work Act 2009 due to Mr Campbell's non-participation and lack of response to the Commission's inquiries.

The FWC examined the provisions of section 587, which allows the Commission to dismiss an application if it appears that the applicant has ceased to pursue or participate in the proceedings. The court considered that Mr Campbell's failure to respond to correspondence and notifications, despite being informed of the potential consequences of non-attendance and non-response, indicated that he might have abandoned his application. Given the statutory authority and the lack of response from Mr Campbell, the Deputy President concluded that the application should be dismissed for want of prosecution. This decision was made on the basis that Mr Campbell had not demonstrated any intention to continue with his application and had effectively ceased to participate in the proceedings.

The reasoning of the Deputy President was grounded in the statutory provisions of section 587, which grants the FWC the discretion to dismiss an application if the applicant has stopped participating in the proceedings. The court was satisfied that Mr Campbell's actions constituted a cessation of his participation in the case. Consequently, the application was dismissed on the Deputy President's own initiative, utilising the power provided by section 587(3)(a) of the Act. An order was made to this effect, finalising the dismissal of Mr Campbell's application for unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established