Jordan Williams v Discovery Parks

[2021] FWC 6194

[2021] FWC 6194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jordan Williams
v
Discovery Parks
(U2021/8878)

DEPUTY PRESIDENT YOUNG MELBOURNE, 25 OCTOBER 2021

Application for an unfair dismissal remedy – application dismissed for want of prosecution

[1] On 6 October 2021, Mr Jordan Williams filed an application with the Fair Work Commission (Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act) (Application).

[2] On 12 October 2021 a notice of listing was issued to the parties listing the matter for a telephone mention (Mention) at 11:30 am on 15 October 2021. In addition to listing the matter for Mention, the notice of listing requested the parties provide names of attendees and contact numbers for the Mention by close of business 13 October 2021.

[3] Mr Williams and the Respondent confirmed their attendance at, and contact numbers for, the Mention by email on 13 October 2021.

[4] At 11.20 am on 15 October 2021 my associate wrote to the parties advising that there would be a slight delay in the start time of the Mention. At 11:45 am on 15 October 2021 my associate attempted to telephone Mr Williams for the Mention. Six attempts were made to contact Mr Williams over eight minutes and one voice message was left. Mr Williams did not return my associate’s calls and accordingly, the Mention did not proceed. At 12:56 pm that day, my associate wrote to the parties by email requiring that Mr Williams advise by close of business that day the reasons for his non-attendance at the Mention. The email also contained directions for the filing of material (Directions) and advised the parties that the matter would be listed for Member Assisted Conciliation (Conciliation) before Deputy President Mansini at 11:30 am on 20 October 2021. The email advised the parties that if Mr Williams failed to attend the Conciliation or comply with the Directions the application may be dismissed. A notice of listing confirming the Conciliation was emailed to the parties by Deputy President Mansini’s chambers at 16:14 that day.

[5] At 9:25 am 18 October 2021, Mr Williams emailed by chambers stating “Good morning I’m so sorry I have only just been able to get data to check my emails. if possible could you explain to me in an email what I need to do now or give me a call today ?”. At 9:38 am that morning, my associate called Mr Williams. My associate advised Mr Williams that he had failed to attend the Mention and that the matter was now proceeding to Conciliation before Deputy President Mansini at 11.30am on 20 October 2021. My associate stated that Directions had been issued and that Mr Williams was required to comply with the dates set out in them. Mr Williams confirmed that he understood that he was required to attend the Conciliation and would attend.

[6] At 11:40 am on 20 October 2021 the chambers of Deputy President Mansini sent the parties a text message advising that the Conciliation was scheduled to take place in the next 15 minutes. At 11:57 on 20 October 2021 Deputy President Mansini’s associate attempted to telephone Mr Williams for the Conciliation on two occasions and two voice messages were left. Mr Williams did not answer or return the associate’s calls and accordingly, the Conciliation did not proceed.

[7] At 3:13 pm on 20 October 2021 my associate wrote to Mr Williams advising that in light of his non-attendance at the Mention and Conciliation, I intended to dismiss his Application for non-compliance, unless by no later than 4:00 pm Friday, 22 October 2021 he provided reasons as to why he was unable to be contacted to attend the Conciliation.

[8] On 21 October 2021 my associate called Mr Williams and left a voice message requesting that he call the Commission. Mr Williams did not return my associate’s call.

[9] No reasons were received from Mr Williams by 4:00 pm Friday, 22 October 2021 and none have been provided as at the time of this decision.

Consideration

[10] Section 587 of the Act sets out when the Commission may dismiss an application. It provides:

“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.”

[11] In determining whether to dismiss a matter on its own initiative, the Commission is not limited to the matters specified in section 587(1)(a) to (c). The opening words ‘[w]ithout limiting when the FWC may dismiss a matter’ clearly confers a broader discretion. 1

[12] Mr Williams did not attend the Mention, nor the Conciliation. He did not respond to correspondence sent by the Commission on 20 or 21 October 2021. He did not provide any reasons as to why he was unable to be contacted to attend the Conciliation, in circumstances where he was on notice that in the absence of such reasons, I intended to dismiss the Application.

[13] I consider Mr Williams has failed to prosecute the Application. Accordingly, I have determined to dismiss the Application for want of prosecution, pursuant to section 587 of the Act.

[14] The Application is dismissed.

DEPUTY PRESIDENT

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 1   See also Kennedy v Complete Belting Solutions Pty Ltd[2013] FWC 2777 at [7].