Jesse John Mallon v SMS Contracting Pty Ltd
[2023] FWC 220
•24 JANUARY 2023
| [2023] FWC 220 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jesse John Mallon
v
SMS Contracting Pty Ltd
(C2022/7712)
| COMMISSIONER SCHNEIDER | PERTH, 24 JANUARY 2023 |
Application to deal with contraventions involving dismissal
This decision concerns an application made by Mr Jesse John Mallon (the Applicant) under section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with contraventions involving dismissal. This Decision concerns whether the application should be dismissed pursuant to section 587 of the Act. In this instance, I have decided to dismiss the Applicant’s application to deal with contraventions involving dismissal under section 587 of the Act. My detailed reasons follow.
History of the application
The application was lodged on 21 November 2022. In summary, the Applicant alleges he has been dismissed in contravention to the Act.
The Respondent objects to the application on the grounds that the Applicant was not dismissed.
On 12 January 2023 my Chambers issued a Notice of Listing for a conference at 11:00AM on 20 January 2023. The Notice of Listing requested that the parties join 10 minutes prior to the listing time.
On the day of the conference, the Applicant did not present for the conference prior to the listing time as requested.
The associate attempted to call the Applicant at 11:02AM and was unable to leave a voicemail as the automated message indicated the phone number was not connected. The associate immediately attempted another call to the Applicant but was met with the same message indicating the phone number was not connected.
The associate then emailed the Applicant, at 11:05AM, requesting he urgently join the conference and provided the link to join again.
I instructed the associate to allow 10 minutes past the listed start time before commencing, in the hopes the Applicant would join.
The Applicant did not join the conference, nor did he attempt to contact my Chambers.
The conference commenced at approximately 11:10AM.
Due to the Applicant’s absence, no significant discussions could he had between the Commission and the Respondent. The Respondent briefly detailed their current position and issues with the application. The Respondent has provided documentation in the matter that indicates the Applicant resigned on 17 January 2023 after gaining employment elsewhere. I then informed the Respondent that my Chambers would contact the parties regarding the Applicant’s non-attendance.
The conference was adjourned at approximately 11:15AM, the Applicant had not attempted to join or contact my Chambers at any point.
At 11:40PM that same day, my Chambers issued correspondence regarding the Applicant’s non-attendance. The email noted that the Commission was now considering dismissing the matter. In that correspondence, I directed the Applicant to provide an explanation regarding his non-attendance and to file submissions regarding the objections to the application and in response to the Commission dismissing the matter.
The Applicant was directed to provide his response by 10:00AM, 23 January 2023. No response was received.
To date, my Chambers has not received any correspondence from the Applicant.
Legislation
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]
Consideration
The Applicant decided to make an application under section 365 of the Act to deal with contraventions involving dismissal. The Applicant however has not engaged in any substantial way with his application.
The Applicant did not attend the conference as directed by the Commission nor has he responded to requests and directions of the Commission.
The associate tried on numerous occasions to contact the Applicant on the day of the conference, via both telephone and email. The Applicant has not returned any of the missed calls or email communication.
As the Applicant is not communicating with the Commission in relation to his application, it is difficult to correctly assess the Respondent’s objections or the merits of the matter. On the material before me, noting that no material has been scrutinised at a Hearing, it appears the application may not have been made in accordance with the Act.
However, the primary concern remains the Applicant’s disruptive absence from the overall proceedings.
The Commission has attempted to prompt the Applicant to share his side of the story, yet he remains silent. As the Applicant is not communicating with the Commission in relation to his application, the Commission is unable to progress this matter or form any reliable conclusions about the validity of his claims or the counter claims made by the Respondent.
Conclusion
The Applicant has failed to comply with directions of the Commission. The Applicant has never sought or requested an extension or adjournment from the Commission nor provided a reasonable explanation, or any explanation, for the continued non-compliance.
I am satisfied that the Applicant has unreasonably and repeatedly failed to comply with directions of the Commission relating to his application. It is accepted that there is no legislative or common law requirement according to which the Commission must continue with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at their own initiative. [3]
Given the above regrettable circumstances, I exercise my powers under section 587(3)(a) of the Act to dismiss this application on the initiative of the Commission. An Order to that effect will be issued in conjunction with this decision.[4]
COMMISSIONER
[1] [1964] HCA 69; (1964) 112 CLR 125 at [8].
[2] [2019] FWC 4399 at [12].
[3] [2013] FWCFB 2532[39].
[4] [PR749958].
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