Joshua Wimpenny v The Trustee for Marsden Family Trust

[2024] FWC 929

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Joshua Wimpenny
v

The Trustee For Marsden Family Trust

(U2024/1611)

DEPUTY PRESIDENT BINET

PERTH, 19 APRIL 2024

Application for an unfair dismissal remedy

On 14 February 2024, Mr Joshua Wimpenny (Mr Wimpenny) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by The Trustee For Marsden Family Trust.

On 14 March 2024, the Application was allocated to my Chambers for determination.

Directions were issued to parties on 20 March 2024 (Directions). The Directions required Mr Wimpenny to file by 4pm (AWST) Thursday 28 March 2024 his materials in relation to the merits of his Application. The parties were advised that compliance with the Directions was mandatory.

Mr Wimpenny failed to file the materials by the required date and time as set out in the Directions.

On 2 April 2024, Chambers wrote to Mr Wimpenny and reminded him that his materials in relation to the Merits of his Application were overdue.

On 8 April 2024, Mr Wimpenny was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Tuesday 9 April 2024. Chambers advised Mr Wimpenny that if he did not file any such submissions or evidence by 4pm (AWST) Tuesday 9 April 2024, the Application would be dismissed pursuant to section 587 of the FW Act.

No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the dismissal of the Application pursuant to section 587 of the FW Act by Mr Wimpenny by 4pm (AWST) Tuesday 9 April 2024.

Section 587 of the FW Act provides:

“s 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, or an application under section   527F that does not consist solely of an application for a stop sexual harassment order, 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.”

Mr Wimpenny failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision, Mr Wimpenny has still not filed any materials in support of the Application or in response to the dismissal of the Application pursuant to section 587 of the FW Act. Mr Wimpenny has not sought an extension to file his materials in support of the Application or in response to the FWC proposing to dismiss his Application. I am satisfied that Mr Wimpenny has unreasonably failed to comply with directions of the FWC relating to this Application. In the exercise of my discretion under section 587 of the FW Act, I have decided to dismiss the Application.

An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

~~Printed by authority of the Commonwealth Government Printer~~

~~<PR773369>~~

[1] Print PR773370.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Joshua Wimpenny v The Trustee for Marsden Family Trust, Deputy President Binet of the Fair Work Commission was tasked with determining an application for an unfair dismissal remedy. Mr. Joshua Wimpenny alleged he was unfairly dismissed by The Trustee For Marsden Family Trust and filed an application under section 394 of the Fair Work Act 2009. The matter was allocated to the Deputy President on 14 March 2024, and directions were issued on 20 March 2024, mandating that Mr. Wimpenny file his materials in relation to the merits of his application by a specific date and time. Despite being reminded of the requirement, Mr. Wimpenny failed to file the necessary materials or respond to the proposed dismissal of the application. As a result, the Deputy President dismissed the application under section 587 of the Fair Work Act, citing the applicant's unreasonable failure to comply with the directions of the Commission.

The primary legal issue before the Deputy President was whether Mr. Wimpenny's failure to comply with the mandatory directions issued by the Fair Work Commission justified the dismissal of his application for an unfair dismissal remedy. The Deputy President considered the provisions of section 587 of the Fair Work Act, which empowers the Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The Deputy President found that Mr. Wimpenny's unreasonable failure to comply with the Commission's directions related to the filing of materials in support of the application and in response to the proposed dismissal constituted a failure to comply with the Act. Additionally, the Deputy President concluded that the application had no reasonable prospects of success due to the non-compliance with the directions. Consequently, the Deputy President exercised the discretion under section 587 to dismiss the application.

In exercising the discretion to dismiss the application, the Deputy President found that Mr. Wimpenny had unreasonably failed to comply with the mandatory directions issued by the Fair Work Commission. Despite being reminded of the requirement to file materials in support of the application and in response to the proposed dismissal, Mr. Wimpenny did not file any such materials by the specified date and time. Furthermore, Mr. Wimpenny did not seek an extension of time to file the materials or provide any submissions or evidence as to why the application should not be dismissed. Given these circumstances, the Deputy President concluded that the application had no reasonable prospects of success and was therefore dismissed under section 587 of the Fair Work Act. An order to this effect will be issued with the decision.

The Fair Work Commission, through Deputy President Binet, dismissed the application for an unfair dismissal remedy filed by Mr. Joshua Wimpenny against The Trustee For Marsden Family Trust. The dismissal was based on Mr. Wimpenny's unreasonable failure to comply with mandatory directions to file materials in support of his application and in response to the proposed dismissal. The Deputy President found that the application had no reasonable prospects of success due to the non-compliance with the directions. Consequently, the application was dismissed under section 587 of the Fair Work Act, and an order to this effect will be issued.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established