Jordan Christopher Andrew Cook v SKS Waterfront Hotel Pty Ltd
[2024] FWC 778
•26 MARCH 2024
| [2024] FWC 778 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jordan Christopher Andrew Cook
v
SKS Waterfront Hotel Pty Ltd
(U2024/663)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 26 MARCH 2024 |
Application for an unfair dismissal remedy
On 19 January 2024, the Commission received an application from Mr Jordan Christopher Andrew Cook (the Applicant) asserting he had been unfairly dismissed by SKS Waterfront Hotel Pty Ltd (the Respondent).
Procedural context
The application was referred to my Chambers on 29 February 2024, and on the following day directions were issued for the parties to respond to questions concerning the programming of the matter (First Directions). Those responses were due by 4:00PM (AWST), Tuesday, 5 March 2024.
On Thursday, 7 March 2024, the Applicant made contact with the Commission advising that due to personal circumstances he was unable to access his emails. The Applicant was informed that the matter was currently before Chambers and that he was to respond to the email that had been issued as soon as possible. The Applicant advised that he would be sending an email to Chambers that evening.
In the evening of Thursday, 7 March 2024, an email was sent to the parties noting the Applicant’s non-compliance with the First Directions and that the Applicant had attempted to make contact by telephone with the Commission, but Chambers had not received any request for an extension of time. The Applicant was notified that if he did not make contact with Chambers, whether by telephone or email, by 4:00PM (AWST) on Friday, 8 March 2024, Chambers would look to issue directions in respect of the Applicant’s non-compliance with the First Directions.
On Friday, 8 March 2024, the Respondent filed an application to dismiss the unfair dismissal application. On that same day, Chambers placed two calls to the Applicant, but he did not answer. A voicemail was left informing the Applicant to contact Chambers by telephone or email, and again alerted him about the non-compliance with the First Directions. An email was sent to the parties on that Friday, advising that a further email regarding the Applicant’s non-compliance would be sent on Monday, 11 March 2024. The Applicant was directed to respond to the preliminary questions sent to the parties on 1 March 2024 as soon as possible, to request an extension of time in which to respond, and to provide an explanation for his non-compliance (Second Directions).
On Monday, 11 March 2024, a call was placed to the Applicant at 9:21AM (AWST) regarding the non-compliance with the First and Second Directions, a voice mail was left. At 11:56AM (AWST), directions were issued regarding the potential dismissal of the Applicant’s application, with the Applicant’s materials due to be filed by 4:00PM (AWST) on Thursday, 14 March 2024. At 12:54PM, the Applicant contacted Chambers and advised that personal circumstances had led to his non-compliance with the directions. At 8:31PM (AWST), the Applicant emailed Chambers explaining reasons for his non-compliance, attaching supporting materials in request for an extension of time to comply with the First Directions. That email was not copied to the Respondent.
Having contacted the Applicant via email on Tuesday, 12 March 2024, to ascertain whether he consented to the reasons for his non-compliance being disclosed to the Respondent and having received a response from the Applicant that afternoon that he did not, correspondence was sent from Chambers to the parties on Wednesday, 13 March 2024. That correspondence detailed that the Applicant had been granted an extension of time in which to comply with the First Directions, and that for confidentiality and privacy purposes, the reasons for the Applicant’s non-compliance would not be disclosed (Third Directions). The Applicant was placed on notice that failure to comply with the Third Directions would constitute a second episode of non-compliance. Chambers placed a call with the Applicant to alert him to the Third Directions; a voicemail was left. A subsequent call was made to the Applicant that day, which the Applicant answered. The Applicant was informed that the Third Directions had been sent and he was to respond to those directions by Monday, 18 March 2024. The Applicant was further informed that non-compliance with the Third Directions could lead to the potential dismissal of his application. The Applicant advised that he would commence work on the Third Directions.
The Applicant was non-compliant with the Third Directions and an email was sent to the parties on Monday, 18 March 2024, setting out directions regarding the potential dismissal of the unfair dismissal application (Fourth Directions). The Applicant’s materials were due to be filed in response to the Fourth Directions, by Thursday, 21 March 2024. Chambers called the Applicant to inform him about the potential dismissal of his application and the issuance of the Fourth Directions. The Applicant advised that he was attending a ‘GP appointment’ that day and he had one letter to submit (presumedly to the Commission). The Applicant was again advised of Chambers’ email address.
The Applicant was non-compliant with the Fourth Directions, having not filed any materials in support of why his unfair dismissal application should not be dismissed. No further correspondence has been received from the Applicant, and therefore the hearing date for the potential dismissal of his application has been vacated. It follows that I have considered it appropriate to determine the matter on the papers.
Consideration
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, 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.
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, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
Contrary to the directions, the Applicant has not yet filed materials responsive to the First Directions. Nor has the Applicant taken any steps to engage with the Commission in respect of responding to the potential dismissal of his application under s 587 of the Act.
I consider that the time afforded to the Applicant to respond to the directions in addition, to the multiple attempts by Chambers to engage with the Applicant, reflect all reasonable steps have been taken by the Commission in the circumstances. Whilst appreciative that the personal circumstances of the Applicant may have contributed, in part, to his non-compliance, accommodation has been provided in the form of an extension of time in which to respond to the First Directions.
The Applicant has not prosecuted his case even though the First Directions required very little of him and an extension of time was provided. Subsequently, the Applicant has not engaged with the potential dismissal of his application. I am, therefore, satisfied that the application has no reasonable prospects of success.
Conclusion and disposition
For the reasons given, the Applicant’s unfair dismissal application is dismissed pursuant to s 587(1)(c) of the Act. An Order[4] issues concurrently with this decision.
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.
[3] Ibid [31].
[4] PR772759.
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