Joseph Adams v Monadelphous Engineering Pty Ltd
[2013] FWCFB 1470
•17 APRIL 2013
[2013] FWCFB 1470 |
FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Monadelphous Engineering Pty Ltd
(C2013/2512)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT | SYDNEY, 17 APRIL 2013 |
Appeal against decision - extension of time for seeking unfair dismissal remedy - extension of time refused - appeal dismissed for want of prosecution - failure to lodge appeal books, to comply with directions or to appear at hearing.
[1] At the conclusion of the proceedings on 20 February 2013 the Full Bench decided to dismiss the appeal brought by Joseph Adams (the Applicant) pursuant to s.604 of the Fair Work Act 2009 (the Act) for want of prosecution. The Full Bench gave the following decision:
“The appeal was listed on 9 January 2013 to be heard today. Directions were also issued on 9 January in relation to the filing of outlines of submissions. There has been a failure in this matter by the Applicant to file appeal books, to comply with directions and to respond to communications from the Commission and the Company and now a failure to appear at the designated hearing of the application. In all these circumstances, we have decided that the appeal should be dismissed for want of prosecution.”
[2] The reasons for that decision are as follows.
[3] The background to the appeal may be briefly set out as follows. The Applicant applied to Fair Work Australia for an unfair dismissal remedy pursuant to s.394 of the Act against his employer, Monadelphous Engineering Pty Ltd (the Company). The application was lodged outside the (then) 14 day time limit and the Applicant sought an extension of time pursuant to s.394 (2)(b) and (3). The matter was heard by Deputy President Harrison who decided to refuse the extension of time and consequently dismissed the application. 1
[4] The Applicant sought to appeal against this decision and lodged a notice of appeal with the Fair Work Commission (the Commission) on 3 January 2013. However, the Applicant did not lodge appeal books as required by Rule 12.2 of the Fair Work Australia Rules 2010 (the Rules) even though several requests were made to him to do so. The appeal was listed on 9 January 2013 to be heard by the Full Bench on 20 February 2013. Directions were issued to the parties in the relation to the filing of written outlines of submissions. The Applicant did not file any outline of submissions as required by the directions or provide any explanation for the failure to do so.
[5] When the appeal came on for hearing Ms K Aistrope, Solicitor, appeared for the Company. The Applicant did not attend the hearing and did not advise the Commission of any reason or excuse for his failure to appear.
[6] The Company sought that the appeal be dismissed for want of prosecution pursuant to the powers given to the Commission under s.587 of the Act.
[7] The Commission has power to dismiss an application under s.587 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.”
[8] Section 399A was included in the Act by the Fair Work Amendment Act 2012 and came into effect on 1 January 2013. The section gives the Commission power to dismiss unfair dismissal applications as follows:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
[9] We note that the requirements of s.577 of the Act also apply to how the Commission should exercise its powers and perform its functions.
“ 577Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”
[10] The Company referred to the decision in Chand v State Rail Authority of NSW, 2 where a Full Bench of the Australian Industrial Relations Commission dismissed an application for want of prosecution and failure of the applicant to attend the listed arbitration. In its decision the Full Bench noted that the classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution were a failure, typically a repeated failure, by an applicant to comply with directions of the court or a prolonged period of inactivity on the part of the applicant.3
[11] In the present matter, the Applicant has failed to file appeal books pursuant to the Rules and to comply with the directions for the filing of submissions. The Applicant did not appear at the designated hearing of the appeal and did not respond to the various communications sent to him by the Commission and by the Company in relation to his intentions regarding the appeal or his failure to comply with the various procedural requirements and directions. The Commission was therefore not aware of any reasons for the non compliance or the failure to attend.
[12] In these circumstances and having regard to the powers of the Commission regarding the dismissal of applications (including those set out in ss.399A and 587) we decided to dismiss the appeal for want of prosecution.
SENIOR DEPUTY PRESIDENT
Appearances:
K Aistrope, Solicitor, for Monadelphous Engineering Pty Ltd.
Hearing details:
2013.
Sydney:
February, 20.
1 [2012] FWA 10468.
2 19 December 2006 [PR975108].
3 Ibid at [48].
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