Joshua Erwin v Manpower Services (Australia) Pty Ltd

[2018] FWC 6275

[2018] FWC 6275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Erwin
v
Manpower Services (Australia) Pty Ltd
(U2017/8594)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 OCTOBER 2018

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

[1] On 8 August 2017, Mr Joshua Erwin filed an application with the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application, Mr Erwin advised that he was notified of his dismissal by Manpower Services (Australia) Pty Ltd (MSA) on 27 July 2017, and that it took effect on the same day.

[3] The matter was listed for conciliation on 5 September 2017 but could not proceed due to Mr Erwin’s unavailability. Correspondence was sent to the parties advising that the matter would proceed to arbitration if Mr Erwin did not request a further conciliation within two working days. Later the same day, Mr Erwin emailed the Commission requesting the matter proceed to hearing. Directions were therefore issued, which required Mr Erwin to file his material by no later than noon on 25 September 2017 and that MSA file its material by no later than noon on 16 October 2017.

[4] On 25 September 2017, Mr Erwin sought an extension to file his material, which was subsequently granted. Amended directions were then sent to the parties, with Mr Erwin required to file his material by no later than noon on 2 October 2017 and MSA to file its material by no later than noon on 23 October 2017. Mr Erwin was also emailed a copy of template documents to assist him with preparing his material.

[5] In the afternoon on 2 October 2017, Mr Erwin advised the Commission he was unable to submit his evidence and that he needed to subpoena material. Mr Erwin said this may take some time and he required the hearing to be moved to early 2018. Mr Erwin requested that his material be due by 15 January 2018.

[6] On 6 October 2017, Mr Erwin was advised via telephone that his extension request had been refused and that if he would like to request documents from MSA, he could make such application. This was subsequently confirmed in writing to Mr Erwin and templates to assist in preparing submissions and making a request for the production of documents were also provided. Later the same day, Mr Erwin requested a one week extension for the filing of his material. The request was granted and amended directions were sent to the parties. Mr Erwin was required to file his material by no later than noon on 9 October 2017 and MSA was to file its material by no later than noon on 30 October 2017. Following the issuing of these directions, a discussion with Mr Erwin took place via telephone and he noted it would be difficult to file his submissions, though he would try his best.

[7] On 9 October 2017, Mr Erwin advised the Commission he would file his submissions by the end of that day or the following day. Mr Erwin was advised if he did not file his material, his matter may go to a non-compliance hearing.

[8] On 10 October 2017, Mr Erwin telephoned the Commission and advised he was still working on his material and he may need to request an adjournment. This request was subsequently put in writing to the Commission. The following day, Mr Erwin was advised his adjournment request had not been granted pending the production of further supporting information/documentation pertaining to the request.

[9] On 13 October 2017, Mr Erwin was advised via telephone that he had until noon on 18 October 2017 to produce documentary material to support his adjournment request. In the absence of filing material, Mr Erwin was advised his matter would be listed for a non-compliance hearing. This advice was confirmed in writing to Mr Erwin.

[10] On 18 October 2017, Mr Erwin provided a letter from Dr Abdulbaset Elhassadi in support of his adjournment request. The letter stated “Mr Joshua Gerwin [sic] age 28 years, is suffering stress realted [sic] mental breakdown. Currently displaying symptoms of sever [sic] anxiety disorder and is not fit to engage in work related matters with Fair Work Commission. He will be seeking his GP in Victoria for counselling and Psychotherapy.”

[11] On 20 October 2017, the hearing dates and directions to file material were vacated. The parties were advised that Mr Erwin was to provide certification of his fitness to participate in and prosecute his application before the matter would be re-listed.

[12] On 19 February 2018, the Commission telephoned Mr Erwin regarding the status of his application. Mr Erwin asked how he could provide certification of his fitness to participate in and prosecute his application could occur and he was advised a medical practitioner could do so if they found him fit to proceed. Mr Erwin advised he would see his general practitioner.

[13] On 10 April 2018, a voicemail message was left with Mr Erwin seeking an update on whether he wished to proceed with his application and whether he had gained approval from his general practitioner to proceed with the preparation of material and the hearing.

[14] On 17 April 2018, email correspondence was sent to Mr Erwin who was requested to contact the Commission to advise if he was proceeding with his application. It was also outlined that if Mr Erwin wanted to discontinue his matter, he could file a Form F50 – Notice of Discontinuance (Form F50), send an email or advise the Commission via telephone that he no longer wished to pursue his application. A copy of the Form F50 was provided.

[15] On 16 May 2018, further email correspondence was sent to Mr Erwin requesting he contact the Commission to advise if he was proceeding with his application. It was again outlined that if he wished to discontinue his matter, Mr Erwin could file a Form F50, send an email or advise the Commission via telephone.

[16] On 15 June 2018, an attempt was made to telephone Mr Erwin, however the call could not be connected. A further email was sent to Mr Erwin requesting he contact the Commission to advise if he was proceeding with his application.

[17] On 25 September 2018, another attempt to contact Mr Erwin via telephone was made, however the call could again not be connected.

[18] On 4 October 2018, a final attempt to contact Mr Erwin via telephone was made. Again, this was unsuccessful and the call could not be connected.

Consideration

[19] Section 587 of the Act sets out how 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.”

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

[21] Over the past 12 months, there have been seven attempts to contact Mr Erwin. The lack of response from Mr Erwin leads me to conclude that he no longer intends to pursue his application.

[22] I have therefore decided to dismiss the unfair dismissal application of Mr Erwin pursuant to s.587 of the Act for want of prosecution. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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