Keith Leech v Car Keith Pty Ltd T/A KW Thompson
[2023] FWC 538
•3 MARCH 2023
| [2023] FWC 538 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Keith Leech
v
Car Keith Pty Ltd T/A KW Thompson
(U2022/12347)
| COMMISSIONER YILMAZ | MELBOURNE, 3 MARCH 2023 |
Application for an unfair dismissal remedy – matter dismissed under s.399A on application by the Respondent – Dismissed for want of prosecution.
On 28 December 2022, Mr Keith Leech (the Applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleged he was unfairly dismissed by Car Keith Pty Ltd T/A KW Thompson (the Respondent) on 12 December 2022. The Respondent contests the application and filed a Form F3 – Employer Response form.
The Applicant states in his Form F2 Unfair Dismissal Application that he commenced employment with the Respondent in 2018, that his dismissal took effect on 12 December 2022. The employer response also corroborated the termination date specified in the Applicant’s Form F2 and clarified that the Applicant commenced working for the Respondent on 12 June 2018.
The matter was listed for conciliation before a staff conciliator on 2 February 2023. The staff conciliator determined the matter could not be resolved at conciliation. The application was subsequently allocated to me, and my chambers issued a notice of listing to the parties on 3 February 2023 for a Mention/Directions hearing for 6 February 2023. The Applicant requested an adjournment which was denied.
On 6 February 2023, the Mention/Directions hearing proceeded, and all parties were in attendance. Following the hearing, I issued directions that the Applicant was to file his submissions by 5pm on Tuesday 28 February 2023.
The Applicant failed to file any submissions.
On 1 March 2023 my chambers emailed the Applicant advising that he had failed to comply with the filing dates set out in the directions issued on 3 February 2023 and that he must file by close of business.
On 2 March 2023 at 9:13am my chambers made an attempt to call the Applicant but was unable to contact him. A voicemail was left advising him that he had failed to file his submissions on time and that the matter would be listed for a non-compliance hearing within the next 48 hours.
Later that same day, at 9:17am, my Chambers sent out an email listing the matter for a non-compliance hearing scheduled for 2:30pm that afternoon.
On the day of the non-compliance hearing the Respondent was present and the Applicant could not be contacted. My chambers attempted to telephone the Applicant 2 times and 2 voicemail messages were left requesting his urgent attendance. No response was received.
During the hearing, the Respondent requested the Applicant’s matter be dismissed due to the Applicant’s consistent failure to comply with directions.
Following the non-compliance hearing the Applicant was given a further opportunity to contact the Commission and he was put on notice that should he not respond by 4.00pm 3 March 2023 that his application may be dismissed.
To date, the Applicant has not responded to any of the correspondence sent to him by my chambers, nor responded to the voicemail messages left on his phone.
The Legislation
Section 399A of the Act concerns the power of the Commission to dismiss an application for a remedy for unfair dismissal under subsection 1 when an application is made by the employer. Relevantly, s.399A provides:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order
under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a)failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b)failed to comply with a direction or order of the FWC relating to the application; or
(c)failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
The Respondent made an application on 2 March 2023 to dismiss the Application pursuant to s.399A of the Act and submits that the Applicant has failed to comply with directions and failed to engage with the Commission to prosecute his application.
While the Respondent has made an application to dismiss the Applicant’s application, the Commission may also on its own motion dismiss an application subject to s.587 of the Act.
Section 587 of the Act provides as follows:
“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.”
Consideration and Conclusion
On conclusion of the noncompliance proceedings, the Applicant has not contacted the Commission. Further, considering the failure of the Applicant to comply with directions, respond to email or voicemail communication from the Commission, attend the noncompliance hearing, or explain his failure to comply or discontinue, I am satisfied that the application for a remedy for an unfair dismissal should be dismissed.
I am satisfied that pursuant to s.399A the Commission may dismiss an application where the applicant has failed to comply with directions and the application to dismiss was made by the employer.
Further at the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).
Had the Respondent not made the Application to dismiss the Commission may dismiss on its own motion where it considers that the matter cannot be prosecuted because of failure by the Applicant to comply with directions or engage with the Commission. In this instance the Applicant has not complied with the directions nor responded to attempts by the Commission to engage with him. I am also satisfied that through those attempts to contact him, the Applicant was on notice of the risk that failure to contact the Commission, that his matter may be dismissed.
On this basis, the application is dismissed for failure to comply with the Commission’s directions pursuant to s.399A and his failure to engage with the Commission pursuant to s.587 of the Act.
An order[1] to that effect will be issued with this decision.
COMMISSIONER
[1] PR760037.
Printed by authority of the Commonwealth Government Printer
<PR760036>
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