Joel Farmer v GPC Asia Pacific Pty Ltd

[2023] FWC 917

[2023] FWC 917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joel Farmer
v

GPC Asia Pacific Pty Ltd

(U2023/534)

COMMISSIONER SIMPSON BRISBANE, 19 APRIL 2023

Application for an unfair dismissal remedy

1. On 20 January 2023, Mr Joel Farmer (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against GPC Asia Pacific Pty Ltd. 

1. The matter was listed for conciliation conference before a Commission staff conciliator on 14 March 2023 and 17 March 2023. The conciliations did not take place as the Applicant could not be contacted, and the matter was allocated to me for consideration.

1. I listed the matter for an initial Directions Hearing by telephone on 4 April 2023. At 9:37am on 4 April 2023, my Associate emailed Mr Farmer seeking that he confirm attendance for the listing. At 9:40am, Mr Farmer emailed my chambers noting he would not be attending the listing. Following this, my Associate sent the following email:

“Dear Mr Farmer,

I refer to the email attached sent to chambers this morning.

The Commissioner advises that you have been on notice of this listing since 27 March 2023 and have only raised an issue on the morning of the listing. Additionally, this is your application, and you have an obligation to prosecute your application.

The Commissioner advises that the Directions Hearing at 2pm today will be adjourned and you are directed to advise when you are available to participate in a Directions Hearing by phone, at a time within the next 7 days during office hours between Monday to Friday. If you fail to do so, the Commissioner will give consideration to dismissing your application for want of prosecution.

…”

1. Mr Farmer did not respond to this correspondence. Accordingly, my Associate emailed a letter to Mr Farmer on 12 April 2023 which provided:

“Dear Mr Farmer

U2023/534 - Mr Joel Farmer v GPC Asia Pacific Pty Ltd

On 27 March 2023, the Commissioner issued a Notice of Listing in the above matter requiring you to attend a Directions Hearing by telephone for your application at 2:00pm Tuesday, 4 April 2023.

You were required to confirm attendance and provide your best contact number by 10:00am Monday 3 April 2023, however Chambers did not receive this confirmation from you. On 4 April 2023, Chambers asked you to confirm attendance and best contact details. Shortly after, you emailed Chambers advising that you would not be attending the listing.

On 4 April 2023, the Commissioner reminded you of your obligation to prosecute your application and directed you to nominate a day and time you were available for a Directions Hearing within 7 days, however you failed to do so. In this same email, the Commissioner advised that if you failed to nominate another day and time, he would give consideration to dismissing your application.

The Commissioner directs you to provide your reason, in writing, for failing to provide an alternative date for the listing by close of business, Monday 17 April 2023. 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.

Your response can be e-mailed to [e-mail].

…”

1. To date no correspondence or telephone contact has been received from Mr Farmer.

1. 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.”

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

1. 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]

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Farmer has failed to respond to various correspondence from chambers, and provide any reasonable explanation to the Commission regarding this failure. Mr Farmer has shown no willingness to prosecute his case and has taken no steps to do so.

1. 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.

1. 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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