Josh Cox v Crestkey Pty. Limited

[2023] FWC 2711

[2023] FWC 2711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Josh Cox

v

Crestkey Pty. Limited

(U2023/6483)

DEPUTY PRESIDENT O’KEEFFE PERTH, 17 OCTOBER 2023

Application for an unfair dismissal remedy - application dismissed pursuant to s.587 of the Act.

1. On 17 July 2023, Mr Josh Cox (the Applicant) lodged an application with the Fair Work Commission (FWC) against Crestkey Pty. Limited (the Respondent) seeking relief for unfair dismissal.

1. A conciliation conference was scheduled for 13 September 2023.  On 13 September 2023, my chambers received an email from the Applicant prior to the scheduled conference as follows:

“Hi All,

Just following on this, didn’t seem to go ahead as scheduled?

Thanks,
Josh”

1. My chambers responded to the Applicant prior to the conference on 13 September 2023 as follows:

“The Member conciliation will be held today at 2:00pm AWST / 4:00pm AEST. Please click on the link approximately 10 minutes before the start time.”.

A copy of the notice of listing previously sent to the Applicant on 4 September 2023 was attached, which also specified the date and time of the conference.

1. The Applicant did not attend the conference on 13 September 2023 as scheduled.

1. My chambers wrote to the Applicant, directing him to provide the reason for his non-attendance at the conference on 13 September 2023.  On 14 September 2023, the Applicant responded as follows:

“Hi Team, 

I was not aware of the time difference I had 12-1:30 booked out but 2pm.

Please reschedule as Crestkey was able to.

Thanks 
Josh” 

1. In the circumstances I agreed to reschedule the conference.  After liaising with the parties as to their availabilities, a conference was rescheduled for 10 October 2023.  An SMS reminder of the scheduled conference was sent to the Applicant’s mobile number on 9 October 2023.  The Applicant did not attend the rescheduled conference on 10 October 2023.

1. On 10 October 2023, my chambers emailed the Applicant to advise that his application would be dismissed under s587 of the Fair Work Act 2009 (FW Act), unless an exceptional reason with evidence, was provided for his non-attendance at the conference on 10 October 2023 by 12pm (AWST), 11 October 2023.  The Applicant did not provide any response within this timeframe, or to the date of my decision in this matter.

1. Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521[1] (Samuel)) and that it has been found that an Applicant’s failure to prosecute their application can be a grounds for dismissal (Sayer v Melsteel Pty Ltd [2011] FWAFB 7498; Samuel; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp [2013] FWC 7641[2]).

1. In this instance, I am persuaded to exercise my powers under s587 to dismiss the application. The Applicant has failed to attend two conferences without reason and has not responded when advised his matter may be dismissed. I find that the Applicant is failing to prosecute his application and as such an order dismissing the application will issue.

DEPUTY PRESIDENT

[1] Samuel v Collins Transport Group Pty Ltd[2019] FWC 5521, [12].

[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [16]; Samuel v Collins Transport Group Pty Ltd[2019] FWC 5521, [13]; Atakaramians v Baycorp (AUS) Pty Ltd t/asBaycorp [2013] FWC 7641, [8].

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