Joshua Willshire v Ray Gulson Pty Limited

[2020] FWC 359

[2020] FWC 359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Joshua Willshire
v
Ray Gulson Pty Limited
(U2019/7226)

DEPUTY PRESIDENT KOVACIC CANBERRA, 5 FEBRUARY 2020

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

[1] On 2 July 2019 Mr Joshua Willshire (the Applicant) lodged an application under s. 394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by Ray Gulson Pty Limited (the Respondent) on 11 June 2019. At the time his application was filed, Mr Willshire was represented by Ms Anouk Heyns of Unfair Dismissals Direct.

[2] Mr Willshire’s application was listed for a conciliation conference before one of the Fair Work Commission’s (the Commission) conciliators on 6 August 2019. The conciliator contacted Ms Heyns who advised she had been unable to contact her client. Subsequently the conciliator attempted to contact the Applicant however there was no answer. The conciliator emailed Mr Willshire, Ms Heyns and the Respondent later that day as set out below:

“Conciliation was scheduled for this matter for 2.15pm Tuesday 6 August 2019. The Applicant’s Representative informed me that she had not been able to contact her client. I called the Applicant’s number but there was no answer. In accordance with current procedure, conciliations are not conducted in the absence of the Applicant.

If you want this matter to proceed via a further conciliation, then you need to email me your request within two working days, together with advice of any dates or times for which you would be unavailable.I will then refer your request to the Unfair Dismissals Team in Melbourne for consideration. Any such request will be dealt with having regard to all the circumstances and, in particular, whether the non-availability of the Applicant can be satisfactorily explained and whether both parties request another listing.

If I do not hear from you within the next two working days I will refer the matter directly for arbitration before a Member of the Fair Work Commission (the Commission).”

[3] On 7 August 2019 the conciliator received emails from both parties requesting that the matter be relisted for a further conciliation. The matter was subsequently listed for a further conciliation on 12 September 2019.

[4] Again Mr Willshire did not attend the conciliation, prompting the conciliator to again write to the parties in terms identical to the correspondence of 6 August 2019 set out above.

[5] In the absence of any response from Mr Willshire or his representative, Mr Whillshire’s application was allocated to me on 19 September 2019. The application was subsequently listed for a telephone mention and/or directions hearing on 15 October 2019. Mr Willshire did not attend the telephone mention and/or directions hearing, nor did he contact my chambers to say he was unavailable or to explain his non-attendance. Numerous attempts to contact Mr Willshire by telephone at the scheduled time of the telephone hearing were unsuccessful. On 16 October 2019 my chambers emailed Mr Willshire (and the Applicant’s representative) in the following terms:

“I refer to the telephone mention/directions that was due to take place at 11:15 am yesterday (15 October 2019). I made several attempts to contact you on … but was unsuccessful.

Deputy President Kovacic now seeks an indication from you as to whether you wish to press you application. You must provide a response by no later 4pm on Wednesday 23 October 2019.

If you wish to discontinue your application kindly return the attached Form F50 Notice of Discontinuance, or advise if the Commission’s assistance is requested further.”

[6] No response was received from Mr Willshire.

[7] On 15 November 2019 my chambers again sent an email to the parties. The email stated:

“Please be advised that chambers has neither received a reply from the Applicant, nor an indication from the Applicant’s representative that they have received any further correspondence or instructions from their client.

Could the Respondent please advise the Deputy President how they wish to proceed with this matter by 4pm Friday 25 October 2019.” (Emphasis as per original)

[8] On 24 October 2019 the Respondent’s representative, Mr Andrew Klein of Mills Oakley, emailed the Commission with the following:

“The Respondent intends to file an application, pursuant to sub-section 587(3) of the Fair Work Act 2009, to have the Applicant’s claim dismissed.”

[9] On 6 November 2019 the Respondent filed an application pursuant to s.587 of the Act to dismiss Mr Willshire’s application (the dismissal application) on the following grounds:

a) Mr Willshire has failed to appear at two conciliation conferences in relation to the matter (on 2 August 2019 and 12 September 2019);

b) Mr Willshire has failed to appear at the directions hearing in relation to the matter (on 15 October 2019);

c) the Commission has been unable to contact Mr Willshire as to whether he wishes to progress his claim; and,

d) Mr Willshire’s representatives have been unable to contact him to receive instructions as to if, or how, he wishes to progress his claim.”

[10] On 11 and 27 November 2019, my chambers wrote to the Mr Willshire and his representative seeking their views regarding the Respondent’s dismissal application.

No response was received from either Mr Willshire or his representative.

[11] On 10 January 2020 the Commission yet again wrote to Mr Willshire and his representative. The correspondence read as follows:

“I refer to your unfair dismissal application which was received by the Fair Work Commission (the Commission) on 2 July 2019.

Your application was listed for a conciliation conference on 12 September 2019 before one of the Commission’s conciliators. You did not attend that conference and did not respond to subsequent correspondence sent to you on that day by the Commission.

Your application was then listed for a telephone mention and directions hearing on 15 October 2019. Again you did not attend. Your representative Ms Maxine Edwards of Unfair Dismissals Direct attended and informed the Commission that they had been unable to contact you and seek further instructions and as a result could not proceed on your behalf.

My chambers subsequently wrote to you and your representative on 16 October 2019 seeking an explanation as to why you did not attend. In the absence of a response from you and your representative my chambers wrote to the Respondent on 24 October 2019 asking them to advise me as to how they wished to proceed.

On 6 November 2019, the Respondent’s representative, Mr Andrew Klein of Mills Oakley, made an application requesting that the Commission exercise their discretion to dismiss the proceedings under s. 587(3)(b) of the Fair Work Act 2009 (Cth) (the Act). On 11 and 27 November 2019, my chambers wrote to you seeking your views regarding the Respondent’s application. No response was received from you.

In circumstances where you failed to attend the abovementioned conciliation conference and mentions and directions hearing and have not responded to the various correspondence referred to above, I seek an indication by no later than 4pm on Tuesday, 14 January 2020 as to whether you intend to press your application. Should you not respond your application may be dismissed without further recourse to the parties pursuant to s. 587(1) of the Act and at the Commission’s own initiative [s. 587(3)(a)].

Alternatively, if you do not intend to proceed with your application please complete and return the Form F50 attached to this email.” (Emphasis as per original)

[12] Once again Mr Willshire has not responded to the above letter or made any contact with the Commission regarding his application.

[13] It is clear from the above chronology that Mr Willshire has taken absolutely no steps to prosecute his unfair dismissal application despite repeated attempts by the Commission to ascertain his intentions regarding the matter. Mr Willshire has also failed to attend two conciliation conferences and subsequent telephone mention and/or directions hearing convened by the Commission regarding his application.

[14] Against that background, I turn now to consider the Respondent’s application pursuant to s.587 of the Act to dismiss Mr Whillshire’s unfair dismissal application.

[15] By way of background, s.587 sets out the Commission’s general powers to dismiss an application. Specifically, s.587 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.”

[16] As can be seen from the terms of s.587, the provision does not limit the grounds upon which the Commission may on its own motion dismiss an application. Nevertheless, as noted by Deputy President Sams in Nick Williams v Sydney Gay & Lesbian Business Association t/a Sydney Gay & Lesbian Business Association (Williams) 1 “[i]t has long been 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”. Having regard to the above extract from the decision in Williams, in circumstances where the Commission has written to Mr Willshire on no less than five occasions regarding his failure to attend Commission proceedings and/or his application and received no response let alone any contact from him, the Commission can hardly be accused of dismissing his application hastily. It is clear that Mr Willshire has been given every opportunity to press his application and that he has failed to do anything whatsoever to press his application and/or to engage with the Commission at any time in the almost seven months since he lodged his application.

[17] In deciding to dismiss Mr Willshire’s application I have also had regard to the views of the Full Bench in Peter Viavattene v Health Care Australia 2 which said:

“[39] …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. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” 3 (Underlining added)

[18] In my view, in circumstances where it appears that Mr Willshire has no intention of prosecuting his unfair dismissal application, it would be unfair and unreasonable to keep the Respondent on tenterhooks regarding the matter. Further, continued efforts by the Commission to clarify Mr Willshire’s intentions regarding his application are in my view likely to be nothing more than a waste of time and resources.

[19] For all the above reasons and in the light of Mr Willshire’s persistent and continued failure to prosecute his unfair dismissal application, I have decided to exercise the discretion available to the Commission under s.587 of the Act and grant the Respondent’s application to dismiss Mr Willshire’s unfair dismissal application. An order to that effect will be issued in conjunction with this decision.

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 1   [2019] FWC 4399 at [12]

 2   [2013] FWCFB 2532

 3   Ibid at [39]