Joseph Daley v CD Patrols Pty Ltd
[2024] FWC 629
•8 MARCH 2024
| [2024] FWC 629 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Joseph Daley
v
CD Patrols Pty Ltd
(U2024/1233)
| COMMISSIONER DURHAM | BRISBANE, 8 MARCH 2024 |
Application for an unfair dismissal remedy - application for dismissal of application pursuant to s.399A or s.587 - application dismissed
On 6 February 2024, Mr Joseph Daley (Mr Daley/the Applicant) made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act), alleging he was unfairly dismissed from his employment with CD Patrols Pty Ltd (the Respondent).
The Respondent raised as jurisdictional objections in their Form F3 response that the application was out of time and that Mr Daley was not dismissed. The Respondent asserts that the effective dismissal date was 3 January 2024 and not 19 January 2024 as provided in Mr Daley’s application.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.394(3). As Mr Daley lodged his application on 6 January 2024, and the alleged date of the dismissal was 3 January 2023, he was 13 days out of time.
In order for the application to proceed, Mr Daley requires the Commission to grant a further period of time within which to bring her application. I issued directions on 15 February 2024, for the parties to file their material.
On 6 March 2024, the Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A, or alternatively s.587(1)(c) of the Act.
Legislation
Section 399A of the Act provides:
“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 other 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.”
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.”
Procedural background
On 15 February 2024 I issued directions for the parties to file material in relation to the jurisdictional objections raised by the Respondent. The matter was listed for determination on 11 March 2024.
On 20 February 2024, Mr Daley filed a separation certificate along with accompanying submissions within his email.
On 21 February 2024, given the date provided in the separation certificate, my Chambers emailed the Respondent requesting that they provide a response on whether they wish to press their jurisdictional objection as it relates to the application being out of time.
On the same day, the Respondent provided an email response confirming they wished to press the live issue of when employment ended as it relates to the out of time jurisdictional objection. No further material or response was received from Mr Daley.
On 22 February 2024, my Chambers wrote to the parties confirming that as the Respondent intended to press their jurisdictional objections, the current directions and hearing date remain on foot.
On 23 February 2024, my Chambers wrote to Mr Daley noting his separation certificate and brief submissions were the only material received, therefore confirmation was sought as to whether he intended to file any further material noting that the deadline for his material to be filed was on 22 February 2024. The email sent was as follows:
“Dear Mr Daley,
I refer to the above matter.
As per the directions issued by Commissioner Durham on 15 February 2024 (attached), material for the Applicant was due to be filed with the Commission, and served on the Respondent, by 22 February 2024.
Aside from your two emails received on 20 February 2024 (one containing the separation certificate) the Commission has not received any further material from you i.e. submissions, witness statements or additional evidence.
Please advise by close of business today, whether you wish to file any further material. If you do wish to file further material, you will be required to request an extension of time to file further material. This can be done via reply email, providing reasons as to why you require an extension of time and how much time you require to file.
Should you choose not to provide any further material, the Commissioner must make a decision based only on the material that has been provided.”
Though I sought a response by close of business that day, no response was received from Mr Daley.
The Respondent filed their material on 29 February 2024 in accordance with my directions. Then on 1 March 2024, the Respondent subsequently confirmed their attendees and witnesses for the purposes of the hearing.
As no communications were received from Mr Daley, my Chambers emailed him on 4 March 2024 seeking confirmation regarding his attendees and witnesses. The email sent was as follows:
“Dear Mr Daley,
Reference is made to the above matter and previous email below.
The Applicant is asked to please confirm his attendance and whether he has any witnesses, with respect to the hearing on Monday, 11 March 2024 at 10:00am (Qld time).
Please advise by close of business today.”
Though I sought a response by close of business that day, no response was received from Mr Daley.
On that same day, my Chambers sent a separate email to the parties provide a digital court book containing the material filed in the matter in preparation for the hearing on 11 March 2024.
On 6 March 2024, the Respondent filed a Form F1 seeking Mr Daley’s application be dismissed, noting that Mr Daley was copied into this email.
On 7 March 2024, my Chambers emailed Mr Daley seeking a response to the Respondent’s application. The email sent was as follows:
“Dear Mr Daley,
Reference is made to the above matter and previous email below from the Respondent containing the attached application seeking to dismiss the application.
Noting no response has been received from you regarding the two attached emails, the Commissioner requests that you please provide a response to the attached application by close of business today, Thursday, 7 March 2024.
Should you choose not to respond, the Commissioner will make a decision based only on the Respondent’s application which may result in your application being dismissed.”
Additionally, on the same day at 2:54pm, my Chambers attempted to call Mr Daley however the call went unanswered, and a voice mail was left referring to the email sent and response sought. No response was received from Mr Daley regarding the email sent or voice mail left.
Respondent’s Submissions
The Respondent in their Form F1 highlighted that Mr Daley failed to respond to emails sent from Chambers on 23 February 2024 and on 4 March 2024. Furthermore, that Mr Daley did not file any witness statements or further material as required by my directions.
The Respondent further submits that, given the lack of communication from Mr Daley, it was unclear whether he intended to attend the hearing on 11 March 2024. Noting that the Respondent will incur significant costs in preparing for the hearing and having to make arrangements for witnesses to attend.
The Respondent sought that the matter be dismissed pursuant to s.399A of the Act or in the alternative s.587(1)(c) of the Act.
Consideration
My Chambers has received no communication from Mr Daley since 20 February 2024, in particular no responses to emails sent from my Chamber on 23 February 2024, 4 March 2024, and 7 March 2024.
The process undertaken has been accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent, as a Form F1, and a copy was served on Mr Daley. Mr Daley was provided with an opportunity to respond to the application and advised that a failure to do so may result in his application being dismissed.
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
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.[2] 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.[3]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Daley has failed to respond to various correspondence from Chambers, nor has he provided any reasonable explanation to the Commission regarding this failure. Mr Daley has shown no willingness to prosecute his case and has taken no steps to do so.
In L. Sayer v Melsteel Pty Ltd,[4] 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.
Conclusion
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 pursuant to s.587(3)(b) of the Act.
An order to that effect will issue with this decision.
COMMISSIONER
[1] [2021] FWCFB 875 [57].
[2] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
[3] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].
[4] [2011] FWAFB 7498 at [19].
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