John Alexander Peterson v Programmed Property Services Pty Ltd
[2023] FWC 251
•3 FEBRUARY 2023
| [2023] FWC 251 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
John Alexander Peterson
v
Programmed Property Services Pty Ltd
(C2022/6852)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 3 FEBRUARY 2023 |
Application to deal with contraventions involving dismissal - application dismissed.
Mr John Alexander Peterson (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
For the reasons that follow, the application is dismissed for an unreasonable failure to attend two conferences.
Context
The application was filed on 10 October 2022.
The matter was listed for conference, by telephone, on 22 November 2022. The applicant was provided with a notice of listing by email to his preferred address on 25 October 2022. The notice contained instructions for the applicant to join the telephone conference. On 18 November 2022, the Commission telephoned the applicant and confirmed his contact number for the conference.
The Commission attempted to commence the conference on 22 November 2022. The respondent was in attendance. The applicant did not join the telephone conference as instructed on the notice of listing. The Commission made a number of attempts to telephone the applicant and left a voicemail advising him to join the conference. The applicant did not contact the Commission and the conference was abandoned.
The conference was re-listed, by telephone, on 13 December 2022. The Commission sent a notice of listing to the applicant by email on 25 November 2022. The notice contained instructions for the applicant to join the telephone conference. On 8 December 2022, the Commission called the applicant to confirm his telephone number for the conference. The applicant did not answer, and the Commission left a voicemail advising the applicant that he must attend the conference.
The Commission attempted to commence the conference on 13 December 2022. The respondent was in attendance. The applicant did not join the conference as instructed on the notice of listing. The Commission made two attempts to call the applicant and left two voicemails requesting urgent contact. The Commission then sent an email noting its attempts to contact the applicant and advising that the conference would be abandoned if he failed to attend. The Commission made a further attempt to call the applicant and left a voicemail advising that the conference had been abandoned.
On 15 December 2022, the applicant called the Commission seeking an update on his application. The Commission advised that the application had been referred to a Member of the Commission for determination of jurisdictional objections raised by the respondent.
On 15 December 2022, the application was listed for mention.
The listing was subsequently cancelled and directions were issued on 21 December 2022 for the resolution of the applicant’s failure to attend the conferences. The email stated, relevantly, as follows:
“An unreasonable failure to attend a listed conference provides a basis for the Commission to dismiss the general protections application pursuant to s 587 of the Fair Work Act 2009 (Cth).
The Deputy President’s preliminary view is that the application should be dismissed...”
A further email was sent on 22 December 2022 explaining that the mention was cancelled and the directions were in force.
The applicant failed to comply with the directions. Subsequently, the Commission telephoned the applicant and left voicemails on 16 January and 30 January 2023 explaining that the application was at risk of being dismissed for failure to attend the two listed conferences.
Consideration
Section 587 of the Act sets out when the Commission may dismiss an application. It provides:
(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.
…
(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.
The Commission is not limited in the ways in which it may dismiss an application under s 587(1). However, in the context of an application under s 365, the Commission must not dismiss the application for a reason prohibited by s 587(2).
For applications made under s 365 of the Act, a basis to dismiss an application pursuant to s 587 of the Act may arise where there has been a failure to comply with a direction, attend a hearing, comply with the rules, or take steps to “prosecute” an application in the sense that there is a delay attributable to a failure on the part of an applicant.
Where the whole of the circumstances lead to a conclusion that there has been an inexcusable or unreasonable delay in the application, this may justify the exercise of the discretion to dismiss an application. This may involve consideration as to the blame attributable to the applicant, prejudice to and complaint of the respondent, and involves a balancing of the Commission’s overarching considerations and the objectives of the Act.[1]
The Commission listed the application for two conferences on 22 November and 13 December 2022. The applicant did not attend either conference. I am satisfied the applicant was properly notified of the conferences as detailed above at [4]-[7]. The applicant was provided with an opportunity to explain his non-attendance by way of the directions issued on 21 December 2022. The applicant did not respond to the email and two voicemails were left with the applicant advising him that his application was at risk of being dismissed. I am satisfied the applicant has not provided any explanation for his non-attendance.
I consider the following matters weigh in favour of the exercise of my discretion to dismiss the application.
First, the Commission is required to perform its functions in a manner that is “quick.”[2] This is particularly important in general protections matters where the Commission is exercising an essentially preliminary jurisdiction.[3] The application was filed over three months ago and no substantial progress has been made with respect to the application. The delay is wholly attributable to the applicant’s non-attendance at the conferences listed on 22 November and 13 December 2022.
Second, the applicant has not advised the Commission of any change in his contact details such that there is a reasonable basis to assume the applicant has not received the Commission’s correspondence.
Third, the applicant was granted a waiver of the application fee and has not, on the Commission’s records, retained a representative in any capacity. It therefore follows that the time and cost incurred by the applicant in making this application has been minimal.
Fourth, the respondent attended the conferences on 22 November and 13 December 2022. While the respondent has not raised that is has suffered any substantial prejudice, I consider that some prejudice arises from the costs incurred by the respondent to attend the conferences.
In the circumstances, I consider it appropriate to exercise my discretion to dismiss the application in accordance with s 587 of the Act. I do so on the basis that the applicant has unreasonably failed to attend the conferences listed on 22 November and 13 December 2022.
Conclusion and disposition
Having regard to the above matters and the conclusions reached, the application is dismissed.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) ss 577-578 as well as the objectives of the Act and Parts of the Act; Bosworth v Coles Supermarket Beechboro T/A Coles Supermarket Beechboro[2022] FWCFB 153
[2] Fair Work Act 2009 (Cth) s 577(b)
[3] Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628 at [90]
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