Kurt Richard Dicker v South32 Worsley Alumina Pty Ltd
[2022] FWC 559
| [2022] FWC 559 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kurt Richard Dicker
v
South32 Worsley Alumina Pty Ltd
(U2022/26)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 17 MARCH 2022 |
Application for an unfair dismissal remedy – dismissal under s 587 at the Commission’s initiative
On 28 December 2021, the Commission received an application from Mr Kurt Dicker (the Applicant) asserting he had been unfairly dismissed by South32 Worsley Alumina Pty Ltd (the Respondent).
The conciliation conference with a staff member of this Commission did not proceed due to the Applicant not responding to telephone calls despite two voicemails having been left on 21 February 2022.
The matter was allocated to my Chambers on 24 February 2022. On 24 February 2022, directions were issued for the parties to respond to questions concerning the programming of the matter (First Directions). Those responses were due by 17:00hrs (AWST), Tuesday, 1 March 2022.
The Applicant did not comply with the First Directions. Chambers issued an email to the parties on 2 March 2022, alerting the Applicant to the non-compliance with the First Directions. The Applicant was directed to write to Chambers explaining his non-compliance and seeking an extension of time in which to provide his response (accompanied with reasons) by 16:00hrs (AWST), on Friday, 4 March 2022. No response was forthcoming.
A telephone call was placed to the Applicant on 8 March 2022, regarding the non-compliance email dated 2 March 2022. A voicemail was left for the Applicant, and he was advised by Chambers that he was required to read Chambers’ emails and comply with the directions, or his application could be dismissed.
A further email was sent to parties on 8 March 2022 regarding the Applicant’s non-compliance, issuing directions and setting down date for hearing (Second Directions). However, the Applicant failed to comply with the Second Directions. The parties were informed in the email dated 8 March 2022, that the matter would be determined on the papers unless either party requested a hearing by 16:00hrs (AWST), on Friday, 11 March 2022. No such request was made.
In short, the Applicant has not responded to any correspondence or communication from Chambers.
The Commission has power to dismiss an unfair dismissal application on its own initiative.
It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[1]
Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal.[2] That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.[3]
The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states:
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.
Whenever exercising the power to dismiss an application under either section, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a)the objects of this Act, and any objects of the part of this Act; and
(b)equity, good conscience and the merits of the matter; and
(c)the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Since the matter was allocated to Chambers, the Applicant has done nothing to prosecute his case. This is notwithstanding the allocation of this Commission’s resources to assist him with his unfair dismissal application, and to prompt him to file the materials necessary to pursue his case. His non-compliance with the First and Second Directions and absence of cogent reasons for the same, have led me to this conclusion.
It follows that in the circumstances of this matter, I consider the Applicant’s application has no reasonable prospects of success and, therefore, dismiss his application pursuant to s 587(1)(c).
An Order[4] to this effect is issued concurrently.
DEPUTY PRESIDENT
Determined on the papers
[1] Peter Viavattene v Health Care Australia[2013] FWCFB 2532 [39].
[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.
[3] Ibid [31].
[4] PR739276.
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