Joshua West v The City of Port Phillip T/A Port Phillip Council

[2021] FWC 1840

[2021] FWC 1840

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua West
v
The City of Port Phillip T/A Port Phillip Council
(U2020/16416)

COMMISSIONER CIRKOVIC MELBOURNE, 7 APRIL 2021

Application for an unfair dismissal remedy – application dismissed for want of prosecution on Commission’s own initiative – s 587 of the Act – matter concluded.

Background

[1] On 23 December 2020, Mr Joshua West (Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) alleging he had been unfairly dismissed by The City of Port Phillip T/A Port Phillip Council (Respondent). The application was filed by the Applicant’s union, the Municipal & Utilities Workers Union (MUWU).

[2] The matter was listed for two separate conciliation sessions on 22 January and 26 February 2021, which ultimately did not proceed due to the non-participation of the Applicant. The matter was subsequently referred to my chambers for hearing and determination.

[3] The matter was listed for a case management conference before me on 17 March 2021. A Notice of Listing was emailed to the Parties on 9 March 2021.

[4] On 15 March 2021, the Respondent lodged an application to have this matter dismissed under s.399A(1)(a) of the Act on the grounds of the Applicant’s non-attendance at the first and second conciliations (399A Application). The Applicant and his MUWU representative, Mr Cameron Wright, were copied into the correspondence lodging this application. The 399A Application relevantly stated:

The Respondent refers to, and relies on, section 399A(1)(a) of the FW Act and submits that the Applicant has unreasonably failed to attend two Conciliation Conferences of the Fair Work Commission (“FWC”) relating to the application and for this reason, the Applicant’s Application (U2020/16416) should be dismissed.

Specifically, the Respondent refers to the following chronology of events in support of its Application

3. On 23 Dec 2020 the Applicant lodged a “Form F2 - Unfair Dismissal Application”, consequent to the termination of his employment with the Respondent on 14 December 2020 Attached hereto and marked “R-1” is a copy of the said Application.

4. On 11 January 2020 the Respondent filed a “Form F3- Response”. Attached hereto and marked “R-2” is a copy of the said Application.

5. On 22 January 2021 the parties were to attend a Telephone Conciliation Conference. The applicant did not attend and provided no reason for nonattendance. His Union representative indicated they were not aware of any reason for the applicant’s non-attendance.

6. The matter was then listed a second time for a Conciliation, by Telephone, before a Fair Work Commission

7. On 26 February 2021 the parties were to attend a Telephone Conciliation Conference. The applicant again did not attend. His Union representative indicated to the Conciliator they were not aware of any reason for his nonattendance.

[5] At 12:40PM on 17 March 2021, my chambers emailed the Applicant seeking confirmation of his contact details for the case management conference. At 12:45PM, the Applicant responded: “Sorry can we reschedule for next week or asap. Josh west”.

[6] My chambers emailed the Applicant urgently seeking a reason for his reschedule request and asking the Respondent for its views on his request. The Applicant did not respond to this communication and the Respondent opposed the proposed adjournment. My chambers subsequently notified the Parties that the case management conference would go ahead as listed. My associate attempted to contact the Applicant on the mobile number provided by him at 2:59PM, 3:02PM and 3:03PM but he did not answer. Mr Wright confirmed that he had not been in contact with the Applicant for “some weeks” and was not instructed on why the Applicant was unable to attend the conference.

[7] The conference was attended by Mr Wright of the MUWU and Mr Lachlan Johnson and Ms Claire Stevens of the Respondent. During the conference, I confirmed that I would be issuing directions in relation to the Applicant’s unfair dismissal application and the Respondent’s 399A Application.

[8] At 5:54PM that evening, my chambers issued directions to the Parties. The first set of directions relevantly required the Applicant to file submissions on or before close of business on 24 March 2021 providing reasons why the Commission should not dismiss his unfair dismissal application (First Directions).

[9] This email also attached a Notice of Listing and Directions in relation to the Applicant’s substantive unfair dismissal application, which relevantly listed the matter for an arbitration hearing on 17 May 2021 and set out a timetable for the filing of evidence and submissions (Second Directions). The Applicant was required to file his material by close of business on 31 March 2021.

[10] That evening, the Applicant sent two emails to my chambers. The first was sent at 7:05PM and responded to the email attaching the First Directions and the Second Directions. It stated “My wife h as been hospitalized that’s why I couldn’t make it. Josh west”. The second was sent at 9:31PM and stated “My wife is hospitalized and are having trouble. Can we do over the phone, Webex”.

[11] On 18 March 2021 at 9:34AM, my chambers sent an email to Mr West (copying in the Respondent and Mr Wright) reattaching the First Directions. It relevantly stated:

Dear Mr West,

I refer to your email below, and an email to the same effect received by chambers at 9:31pm yesterday (attached), stating the reason you could not attend yesterday’s case management conference was because your wife was hospitalized.

If you intend to rely on this to contest the Respondent’s s. 399A dismissal application in accordance with Paragraph [7], Item 1. of the Commissioner’s directions issued yesterday (reattached for convenience), you will need to produce evidence supporting this claim. I note that this evidence is due close of business, Wednesday 24 March 2021.

I note in relation to your request “can we do over the phone” that the s399A matter is not currently listed, but the Commissioner will convene a conference if both Parties file evidence in accordance with the directions.

…

[12] My chambers did not receive any response from the Applicant to this email. On the evening of 22 March 2021 and the morning of 24 March 2021, my associate made further attempts to contact the Applicant by telephone. My associate left two voicemails referring to the First Directions and reminding the Applicant that his material was due by close of business on 24 March 2021.

[13] No materials were filed by the Applicant in accordance with the First Directions. At 9:25AM on 25 March 2021, my chambers emailed the Applicant (copying in the Respondent and Mr Wright) attaching a non-compliance letter which noted that he had not complied with the First Directions. This letter stated that if the Commission did not receive any response from him in relation to his apparent failure to comply with the directions by close of business 26 March 2021, his unfair dismissal application “may be dismissed without any further advice to you.”

[14] At 3:27PM on 25 March 2021, my chambers received an email from Mr Wright, stating that “Apologies for the delay but just informing you that Mr. West has not instructed me to act on his behalf in relation to this matter and I’ve had no other contact since this notice.” At 3:31PM my chambers received a second email from Mr Wright stating “Just to clarify when I stated no other contact since this notice, I was referring to the email that you sent to Mr. West on the 18th March below.”

[15] The Applicant did not provide any response to the non-compliance letter by close of business, 26 March 2021. The Applicant has not filed any material in accordance with the Second Directions.

[16] The Applicant’s last contact with my chambers was on 17 March 2021 via his emails of 7:05PM and 9:31PM.

Consideration

[17] In light of the above, I have decided to dismiss this application for want of prosecution, pursuant to s.587 of the Act.

[18] The Commission’s powers to dismiss an application are set out generally at s.587 of the Act. I set out the section below:

“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.”

[19] It has been long held by the Courts, Commissions and Tribunals 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. 1 This is because such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had, in the common vernacular, their ‘day in court’.

[20] That said, s.587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. In the present case, the Applicant has demonstrated a persistent unwillingness to properly engage with the Commission in respect to his application by failing to attend two conciliations convened by the Commission, failing to attend the case management conference listed before me on 17 March 2021 and failing to comply with my directions. The Applicant has, outside of his emails of 17 March 2021, made no attempt to explain his non-attendance at the case management conference, despite being warned of the possible consequences, and has not provided any reason for failing to attend the conciliations or comply with the First Directions and the Second Directions. There have been no communications at all from the Applicant for three weeks, despite repeated attempts by my chambers to engage the Applicant via telephone calls and emails.

[21] In my view, the Applicant has been afforded every opportunity that “the law and principle require” 2 to engage with his application and these proceedings. In this regard I note the comments of the Full Bench in Viavattene v Health Care Australia[2013] FWCFB 2532 that “There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative”.3

[22] On the basis of the above, I have determined to dismiss the application U2020/16416, pursuant to s.587 of the Act. An order to this effect will be issued separately.

COMMISSIONER

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 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]

 2   Kirby J in Allesch v Maunz (2000) 203 CLR 172, at [35]- [39]

 3 [39].