Jason Warr v Outdoor Supacentre Pty Ltd
[2023] FWC 2912
•8 NOVEMBER 2023
| [2023] FWC 2912 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Warr
v
Outdoor Supacentre Pty Ltd
(U2023/8789)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 8 NOVEMBER 2023 |
Application for an unfair dismissal remedy
On 13 September 2023, the Commission received an application from Mr Jason Warr (the Applicant) asserting he had been unfairly dismissed by Outdoor Supacentre Pty Ltd (the Respondent).
The application was referred to my Chambers on 25 October 2023 and on that same date directions were issued for the parties to respond to questions concerning the programming of the matter (First Directions). Those responses were due by 1600hrs (AWST), Friday, 27 October 2023.
The Applicant did not comply with the First Directions and no explanation was provided for the non-compliance. Chambers issued an email to the parties on Monday, 30 October 2023, alerting the Applicant to his non-compliance with the First Directions. The Applicant was directed to write to Chambers explaining his non-compliance and seeking an extension of time in which to provide his response (accompanied with reasons) by 1200hrs (AWST), Tuesday, 31 October 2023 (Second Directions)
In addition to emailing the Applicant about his non-compliance, on Monday, 30 October 2023, Chambers attempted to call the Applicant at 1038hrs (AWST). A voice message was left referring to the matter number and the First Directions issued on 25 October 2023, noting Chambers had not yet received a response from the Applicant. The Applicant was asked to attend immediately to the Second Directions sent by Chambers on Monday, 30 October 2023, regarding his non-compliance. It was noted in the voicemail that failure to comply with directions may result in the dismissal of his application. The Applicant was invited to either reply to the email or give Chambers a return call, if he wished to discuss the matter further. A further phone call was made to the Applicant on that day at approximately 1420hrs (AWST) to discuss the non-compliance email sent. The Applicant did not answer.
On Tuesday, 31 October 2023, Chambers attempted to call the Applicant at 1243hrs (AWST). There was no answer and Chambers did not leave a voice mail. Instead, Chambers issued an email on that same date informing parties that the Commission would now consider the dismissal of the Applicant’s unfair dismissal application. The Applicant was advised that the Commission has powers under s 587 of the Fair Work Act 2009 (Cth) (the Act) to dismiss an application where there is non-compliance with directions. The email set out the hearing date and directions regarding the filing and serving of materials in respect of the potential dismissal of the Applicant’s application. The Applicant was required to file with Chambers and serve on the Respondent his materials by 1600hrs (AWST) on Thursday, 2 November 2023 (Third Directions).
No materials were received from the Applicant by that deadline notwithstanding Chambers having attempted to call the Applicant at 1409hrs (AWST) on Tuesday, 31 October 2023. A voice message was left for the Applicant at this time explaining that an email had just been sent by Chambers with directions regarding s 587 of the Act, in light of the Applicant's repeated non-compliance. The Applicant was informed to review the Third Directions immediately. The Applicant was advised to simply email Chambers if it was the case that he no longer wished to pursue his application.
On Friday, 3 November 2023, Chambers emailed the parties noting the Applicant’s non-compliance with the Third Directions issued on Tuesday, 31 October 2023. To provide the Applicant with further time in which to respond, the Third Directions were amended to allow the Applicant to provide materials by 1600hrs (AWST), Monday, 6 November 2023 and for the Respondent to provide materials by 1200hrs (AWST), Tuesday, 7 November 2023. In addition, Chambers called the Applicant at 1058hrs (AWST) on that same day and left a voice message, advising the Applicant that he had materials due to be filed on 2 November 2023 which had not been filed, he had been non-compliant with the directions to date, further directions had issued today, and he was to check his email.
The Applicant was non-compliant with the amended Third Directions and in the absence of having received any communication from the Applicant, the hearing listed for Tuesday, 7 November 2023, was vacated and the matter was determined on the papers.
In short, the Applicant has failed to respond to any correspondence or communication from Chambers.
The Commission has power to dismiss an unfair dismissal application on its own initiative. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[1]
Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal.[2] That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.[3]
The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states:
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.
Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Since the matter was allocated to Chambers, the Applicant has done nothing to prosecute his case. This is notwithstanding the allocation of this Commission’s resources to assist him with his unfair dismissal application, including emails and telephone calls to remind the Applicant to promptly file the materials necessary to pursue his case or to respond to the potential dismissal of his unfair dismissal application. The Applicant’s non-compliance with the directions (including the amended Third Directions) and lack of response to written and verbal communication from Chambers, in circumstances where he had not informed the Commission of any unavailability, have led me to this conclusion.
It follows that in the circumstances of this matter, I consider the Applicant’s application has no reasonable prospects of success and, therefore, his application is dismissed pursuant to s 587(1)(c).
An Order[4] to this effect is issued concurrently.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].
[2] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].
[3] Ibid.
[4] PR768010.
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