Geoffrey Robert Woods v JMC Automotive Group Pty Ltd

[2022] FWC 1381

[2022] FWC 1381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Geoffrey Robert Woods
v

JMC Automotive Group Pty Ltd

(U2022/2711)

DEPUTY PRESIDENT YOUNG MELBOURNE, 1 JUNE 2022

Application for an unfair dismissal remedy – application dismissed for want of prosecution.

1. On 3 March 2022, Mr Geoffrey Robert Woods (the Applicant) filed an application with the Fair Work Commission (Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act) (Application).

1. On 4 March 2022, a notice of listing was issued to the parties listing the matter for conciliation at 2.15pm on 6 April 2022. At 10.21am on 6 April 2022 Mr Woods emailed the Commission requesting the conciliation be adjourned. The adjournment request was granted and a conciliation took place on 9 May 2022. The matter did not resolve at conciliation and accordingly the matter was referred to me for further programming.

1. On 10 May 2022 a notice of listing and directions (Directions) were emailed to the parties confirming the date of hearing, the materials to be filed and also directing parties to a Member assisted conciliation (MAC) following the filing of materials.

1. The Directions required the Applicant to file materials by no later than 5pm Tuesday, 24 May 2022. Mr Woods failed to comply with that direction and did not file any materials by 5pm 24 May 2022.

1. On 25 May 2022, an email was sent from my chambers to the parties identifying that Mr Woods had failed to file any materials as required by the Direction and requiring the Applicant to file his materials as a matter of urgency, but by no later than close of business that day, being Wednesday 25 May 2022. Mr Woods again did not file any material, nor made any attempts to contact chambers requesting an extension or providing any information as to the reason for his failure to comply with the Directions.

1. On 26 May 2022, an email was sent from chambers to the parties detailing the background in paragraphs [3] to [5] above and stating the following:

“The Deputy President proposes to dismiss the Application for want of prosecution.

The Applicant has until 5pm Monday, 30 May 2022 to provide submissions as to why the Application ought not be dismissed. If no response is received by this time the Deputy President may dismiss the application under section 587 of the Fair Work Act 2009.”

1. On 30 May 2022, and to the date of this decision, the Applicant has not responded, contacted chambers or filed any submissions as to why the Application ought not be dismissed.

Consideration

1. Section 587 of the Act sets out when the Commission may dismiss an application. It 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.

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 determining whether to dismiss a matter on its own initiative, the Commission is not limited to the matters specified in section 587(1)(a) to (c). The opening words ‘[w]ithout limiting when the FWC may dismiss a matter’ clearly confers a broader discretion.[1]

1. Mr Woods has not responded to any communications from the Commission since 9 May 2022, has not complied with the Directions nor filed any materials in support of the Application.  He did not respond to communications from the Commission on 26 May 2022 nor provide any submissions as to why the Application should proceed in circumstances where he was on notice that in the absence of such submissions I proposed to dismiss the Application.

1. As the Applicant, the onus is on Mr Woods to prosecute the Application. I consider Mr Woods has failed to do so, including following being informed that the Application may be dismissed. Accordingly, pursuant to section 587 of the Act I have determined to dismiss the Application for want of prosecution.

1. The Application is dismissed.

DEPUTY PRESIDENT

[1] See also Kennedy v Complete Belting Solutions Pty Ltd[2013] FWC 2777 at [7].

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