Jack Langton v Programmed Industrial Maintenance Pty Ltd
[2023] FWC 1547
•27 JUNE 2023
| [2023] FWC 1547 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jack Langton
v
Programmed Industrial Maintenance Pty Ltd
(C2023/1067)
| COMMISSIONER MIRABELLA | MELBOURNE, 27 JUNE 2023 |
Application to deal with contraventions involving dismissal – application dismissed pursuant to s.587 of the Fair Work Act 2009.
On 28 February 2023, Mr Jack Langton filed a general protections application involving dismissal under s.365 of the Fair Work Act 2009 (Act) in the Fair Work Commission (Commission).
Mr Langton commenced employment with Programmed Industrial Maintenance Pty Ltd (Programmed) in early February 2023, the exact date being in dispute. Mr Langton says that he was dismissed on 10 February 2023.
Programmed raised a jurisdictional objection to the application. They say Mr Langton is a casual employee who is still employed by them and therefore he was not dismissed.
Before this matter was allocated to me on 31 May 2023 for case management regarding the jurisdictional objection, Mr Langton had failed to attend two conciliation conferences which were to be conducted by staff members of the Commission. No explanation was provided by Mr Langton for his failure to attend these conferences.
I listed the matter for conference on 2 June 2023. On 31 May 2023, Mr Langton sought an adjournment, advising that he will not be available for the conference as he will be working in a coal mine until 7 July 2023.
On 1 June 2023, my associate sent an email requesting Mr Langton’s work hours so that I could accommodate his unavailability. Mr Langton replied that afternoon, stating he will only be available from 29 June 2023 to 3 July 2023.
I vacated the 2 June 2023 conference and parties were issued with directions for the filing and service of material in relation to the jurisdictional objection. The directions contained the following note, and this advice was reiterated in the covering email:
“Non-compliance: The Commissioner will not accept material that is filed late unless an extension has been granted by the Commissioner before it was due. Requests for an extension of time must be made in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted. Non-compliance with the Directions has the potential to impact on any continuation of the proceeding.”
The directions required Mr Langton to file and serve an outline of submissions, signed witness statements and any other documentary material by 4:00pm on 22 June 2023.
On 20 June 2023, my associate sent an email to Mr Langton reminding him of the above deadline and noting that non-compliance with the directions had the potential to impact on continuation of the proceeding. That afternoon, Mr Langton replied to this email, stating that he is currently working in Queensland, that he has an injury and that he will not be home until 28 June 2023. He sought an extension of time until 29 June 2023 to submit his material.
That same afternoon, my associate replied to Mr Langton stating that I did not grant the extension and noting that it did not appear he was too incapacitated to file his material because he was still working.
Mr Langton sent the following email in reply:
“I’m unable as I’m in a different state (QLD) and all relevant documents are at my home in Adelaide.
So unless there is a magic way of getting those documents to me (I live alone) I cannot upload to an email”
The following day on 21 June 2023, I granted an extension of time for Mr Langton to file any documentary material not in his possession but advised that his outline of submissions and witness statements were due at 4:00pm on 22 June 2023.
Mr Langton did not file an outline of submissions or witness statement by 4:00pm on 22 June 2023. On 23 June 2023, my associate sent him an email noting his non-compliance with my directions, requesting that he send an explanation for his non-compliance to my chambers by 4:00pm on 26 June 2023 and requesting that he seek leave to file outside of the set directions. This email drew his attention to s.587 of the Act and advised that if no response was received by the deadline, the application may be dismissed without further notice to him.
At the time of writing, no response has been received from Mr Langton.
Consideration
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.
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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.”
Sections 587(2)(a) and (b) operate so as to prevent the dismissal of an application under s.365 on the grounds that it was frivolous or vexatious or had no reasonable prospects of success.
The Full Bench of the Commission in Bosworth v Coles Supermarket Beechboro stated that previous decisions of the Commission have accepted that the specific grounds outlined in s.587(1) are not exhaustive and therefore do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative under s.587(3)(a).[1]
In Baillie v PJDH Pty Ltd t/a Brazilian Beauty Fairfield, Deputy President Mansini stated that s.587 confers a sufficiently broad discretion to allow an application under s.365 to be dismissed for want of prosecution, but that this discretion should be exercised with caution having regard to the matters the Commission must consider when performing its functions.[2]
In McLeod v Kulgera Trading Company Pty Ltd, Vice President Catanzariti dismissed a s.365 application pursuant to s.587(3)(a) after the applicant failed to participate in Commission proceedings.[3] In doing so, the Vice President cited Commissioner Gooley’s decision in Rebecca Tomas v Symbion Health,[4] in which the Commissioner dismissed an application under s.587 on the basis that Fair Work Australia (as it was then called) must afford a fair go all round to employers and employees and must perform its functions and exercise its powers in a manner that is fair and just, taking into account the principles of fairness, justice, equity and good conscience.
I am satisfied that because Mr Langton has failed to file an outline of submissions or a witness statement, and has failed to explain this failure, his application should be dismissed for want of prosecution.
In exercising my discretion to dismiss an application under s.587, I have regard to the principle of a fair go all round to both employers and employees, noting Mr Langton’s lack of engagement with the Commission’s processes and that Programmed has already been required to expend resources, including in filing submissions outlining their jurisdictional objection to an application that Mr Langton does not seem to have any intention of following through.
Accordingly, the application is dismissed pursuant to s.587(3)(a) of the Act. An order giving effect to this decision will be issued shortly.
COMMISSIONER
[1] [2022] FWCFB 153, [48].
[2] [2020] FWC 163, [32].
[3] [2014] FWC 2112.
[4] [2011] FWA 5458.
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