Kristian Booth v Frame Fabrications Pty Ltd
[2025] FWC 650
•11 MARCH 2025
| [2025] FWC 650 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kristian Booth
v
Frame Fabrications Pty Ltd
(U2024/15201)
| DEPUTY PRESIDENT LAKE | BRISBANE, 11 MARCH 2025 |
Application for an unfair dismissal remedy – failure to prosecute – s.587 – application dismissed.
On 17 December 2024, Mr Kristian Booth (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed from his employment with Frame Fabrications Pty Ltd (the Respondent).
The Respondent raised three jurisdictional objections: that the Applicant does not meet the minimum employment period under s. 383 of the Act, that the Applicant resigned and was not dismissed, and that the Respondent complied with the Small Business Fair Dismissal Code. The Respondent states that they are a small business employer with nine employees.
On 18 February 2025, I listed the matter for a Directions conference and member assisted conciliation. I issued Directions for the Applicant and Respondent to address the three jurisdictional objections, as well as the merits in their submissions.
On 25 February 2025, the Applicant failed to attend the Directions and conciliation conference. My Chambers attempted to call and speak to the Applicant three times, with no success.
My Chambers emailed the Applicant to note that he had not attended the Conference. The Applicant was reminded that his submissions would be due the following day, 26 February 2025 and that if the Applicant failed to provide submissions by the due date, the matter may be listed for non-compliance.
Later in the day on 25 February 2025, the Applicant replied to the email from my Chambers, stating:
Hi sorry I have been flat out with my new job and doing alot of overtime so I didn’t even see the email and earliest i can attend anything is 230pm when I have finished work.
Sorry about this, im assuming this matter will be discontinued due to me not attending the meeting today?
The Applicant did not request an extension for filing of his submissions. No submissions were received from the Applicant.
On 28 February 2025, my Chambers told the Applicant that the application would not be automatically dismissed for non-attendance. However, it was noted that the Applicant had failed to file his submissions as directed. It was noted that commitments with a new job are generally not an acceptable reason for non-compliance. As the Applicant is the one who has made the application, he is expected to make it a priority. The Applicant was asked if he wished to continue with the application.
The Applicant replied on 28 February 2025:
I will pursue the matter if the workplace isn’t going to get off on a loophole running two abns out of the one business. Or if they can’t use that, which is their only leg to stand on, I will continue with the matter.
On 28 February 2025, the Applicant was given an extension to provide his submissions and evidence until close of business, 3 March 2025. It was noted that if the Applicant failed to provide submissions by this due date, there would be a non-compliance hearing at 1:30pm on 4 March 2025.
On 4 March 2025, it was noted that the Applicant had not complied with the amended directions. The matter listed for a non-compliance hearing at 1:30pm on 4 March 2025. My Chambers called the Applicant in the morning and left a message advising him that the matter had been listed for a non-compliance hearing, which the Applicant was required to attend, and that the Applicant should check his emails for details of the hearing.
The Applicant did not attend the non-compliance hearing. My Chambers attempted to contact the Applicant three times, with no success.
On 7 March 2025, my Chambers emailed the Applicant as follows:
Dear Mr Booth
I refer to the non-compliance hearing on 4 March 2025. You did not attend and have not communicated with Chambers since 28 February 2025.
The Deputy President is considering dismissing the application for want of prosecution under s.587. This is your final opportunity to provide reasons why the application should not be dismissed.
The Deputy President is considering dismissing the matter for want of prosecution because you have failed to comply with Directions to provide your submissions to explain your argument. The Respondent has raised three jurisdictional objections, including the objection that you resigned. You have claimed that the Respondent is relying on a legal loophole but you have not provided your submissions to rebut these jurisdictional objections.
Without further evidence and arguments to say why these jurisdictional objections should be dismissed, which you have not provided, in the Deputy President’s preliminary view, your prospects of success are weak.
Further, the Deputy President is concerned that the Respondent may suffer prejudice in having to prepare for a hearing when you have not provided any submissions and evidence.
You have until close of business Monday 10 March 2025, to provide a response explaining the delay and providing your submissions, that is, your arguments addressing all three jurisdictional objections. If your response is not satisfactory, the Deputy President may dismiss the application.
…
No response was received from the Applicant on 10 March 2025.
Section 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, or an application under s527F 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.”
The words, “without limiting when FWC may dismiss an application” under s.587(1) of the Act establishes that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
I note a recent Full Bench decision of Priestley v Blackfisch Films Pty Ltd[2025] FWCFB 40 provides guidance on how the discretion to dismiss an application for want of prosecution should be exercised:
[32] Although compliance with directions of the Commission is important to its efficient operation, rules and case management procedures are the servants, not the masters, of justice. The exercise of a power to dismiss proceedings for want of prosecution without determination on the merits is a serious step which has the effect of curtailing an applicant’s substantive rights and “must not be lightly exercised”. That step will generally be reserved for a clear case where it is manifestly warranted. Full Benches of this Commission have emphasised that the Commission’s power to dismiss a substantive application at a preliminary stage should be exercised with caution.
[33] The exercise of a discretion by a member of the Commission to summarily dispose of proceedings on grounds of want of prosecution, under s 399A in the case of unfair dismissal proceedings or otherwise, involves a balancing exercise in which a variety of factors are to be considered. Considerations such as those set out by Simpson J in Hoser v Hartcher are likely to be relevant. The ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. That assessment must also be undertaken taking into account the obligations of the Commission under s 577(1) of the Act and the impact of any non-compliance with directions on the operations of the Commission more broadly.
(citations omitted)I have taken into account relevant factors in deciding whether to dismiss the application. Relevantly, the Applicant has not provided a satisfactory explanation for his failure to provide submissions by the due date. He has exercised a choice in prioritising his new job over the current proceedings and therefore there is no blamelessness on the Applicant’s part. Further, although there has not been a full hearing on the merits, the Applicant appears to have minimal prospects of success. The Applicant has provided limited information to the Commission, instead claiming that the Respondent intends to get off on a technicality, referencing the fact that the Respondent has made jurisdictional objections, claiming to be small business. It is noted that there is also a jurisdictional objection that the Applicant resigned. According to the Respondent, the Applicant provided a handwritten resignation note and walked out of the business. The Applicant has not addressed this, instead focussing on the “legal loophole” relied on by the Respondent.
In considering the manner in which the Commission must perform its functions under s.577, including that it must be “quick, informal and avoids unnecessary technicalities”, it is not in the interests of justice for the Commission to continue to delay the matter, when the Applicant continually fails to provide submissions and displays disregard for the processes of the Commission.
In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act as the Applicant is not pressing his unfair dismissal matter.
DEPUTY PRESIDENT
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