Israel Ham v Little Riri Pty Ltd T/A the Jolly Roger Fish and Chips
[2022] FWC 485
| [2022] FWC 485 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Israel Ham
v
Little Riri Pty Ltd T/A The Jolly Roger Fish and Chips
(U2021/3261)
| COMMISSIONER SIMPSON | BRISBANE, 4 MARCH 2022 |
Application for an unfair dismissal remedy - application dismissed under s.587.
On 16 April 2021, Mr Israel Ham (Mr Ham/the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Little Riri Pty Ltd T/A The Jolly Roger Fish and Chips (the Respondent).
The matter was listed for conciliation conference before a Commission staff conciliator on 18 May 2021. The conciliation did not take place and the matter was allocated to me for consideration.
I listed the matter for an initial directions hearing by telephone on 3 June 2021. Mr Ham and his representatives Mr Stephen Dryley-Collins and Ms Prathnaa Haripersad of Supportah Ops Pty Limited appeared at the directions hearing as well as the Respondent. At the conclusion of the directions hearing, the matter was adjourned pending the outcome of concurrent proceedings. The matter was listed for a report back on 2 August 2021 and a further mention on 11 November 2021.
On 8 November 2021, Mr Dryley-Collins filed a Form F54 Notice of Representative Ceasing to Act for Mr Ham.
On 11 November 2021 at 1:19pm prior to the Mention, my Associate sent the following email to the Applicant:
“Dear Mr Ham
I refer to the above matter and attached Notice of Listing advising that your application has been listed for a telephone mention this afternoon at 2:00pm Queensland time.
The Notice of Listing required you to confirm attendance and your best contact number by 10:00am yesterday 10 November 2021.
Please advise as a matter of urgency, whether you intend to appear at 2:00pm and your best number to contact you on”
Later that day, my Associate attempted to contact Mr Ham for the Mention multiple times, however the calls went unanswered.
At 4:28pm that same afternoon, my Associate sent the following correspondence to Mr Ham:
“Dear Mr Ham
Re: U2021/3261 - Ham, Israel v Little Riri Pty Ltd T/A The Jolly Roger Fish and Chips
On 5 November 2021 the Commissioner issued a Notice of Listing in the above matter requiring you to attend a Mention by telephone for your application at 2:00pm Thursday 11 November 2021.
You were required to confirm attendance and provide your best contact number by 10:00am Wednesday 10 November 2021, however chambers did not receive this confirmation from you.
Attempts were made to contact you on the number listed on your application. The number went straight to message bank on the numerous attempts to call you and you failed to appear for the Mention.
You have made no attempt to contact the chambers of Commissioner Simpson to explain the reasons for not attending the Mention listed today.
The Commissioner directs you to provide your reason, in writing, for failing to attend the Mention by telephone by close of business Thursday 18 November 2021. If no explanation is received from you the Commissioner will give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.
The Respondent would also be at liberty to make a formal application that the unfair dismissal application be dismissed in accordance with s.399A of the Fair Work Act 2009.
Your response can be e-mailed to [email protected], or posted to the Fair Work Commission, GPO Box 5713, Brisbane, QLD, 4001…”
To date no correspondence or telephone contact has been received from Mr Ham.
Section 587 of the Act provides as follows:
“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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Ham has failed to respond to various correspondence from chambers, and provide any reasonable explanation to the Commission regarding this failure. Mr Ham has shown no willingness to prosecute his case and has taken no steps to do so.
In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.
In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution and I do so.
COMMISSIONER
[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].
[3] [2011] FWAFB 7498 at [19].
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