Kyal Penhall v Days Eggs Pty Ltd

[2023] FWC 1832

[2023] FWC 1832

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Kyal Penhall
v

Days Eggs Pty Ltd

(U2023/5096)

COMMISSIONER PLATT ADELAIDE, 25 JULY 2023

Application to deal with unfair dismissal application - dismissed pursuant to s.587 of the Fair Work Act 2009.

1. On 6 June 2023, Mr Kyal Penhall (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Days Eggs Pty Ltd (the Respondent).

1. A Conciliation was conducted on 10 July 2023 but the matter did not resolve.

1. The matter was then assigned to my Chambers.

1. On 11 July 2023 a Notice of Listing was issued by my Chambers. The Applicant was served using the email address designated on his Form F2. Both the Applicant’s Representative and Respondent advised they were unable to attend the Directions Conference.

1. Written Directions were issued for the filing of material. The Applicant’s material was due by no later than 4.00pm (SA) Tuesday, 18 July 2023.

1. At 5:36pm on 18 July 2023, the Applicant’s Representative notified Chambers via email requesting an extension of time for the filing of material advising they were unable to make contact with the Applicant.

1. As at 9:07am on Wednesday, 19 July 2023, no material or communications from the Applicant had been received and the matter was listed for a Non-Compliance Hearing at 1:00pm.

1. The Applicant’s Representative filed a Form F54 Notice of Representative Ceasing to Act shortly after at 10:33am.

1. The Applicant did not attend the Non-Compliance Conference. At or about 12:34pm (SA), my Associate attempted to call the Applicant twice on his mobile and left a voicemail advising the Applicant to contact the Fair Work Commission.

2. Further Directions were issued for the filing of the Applicant’s material by no later than 4.00pm (SA) Monday, 24 July 2023. The Applicant was served using the email address designated on his Form F2.

1. No material or communications from the Applicant have been received.

1. s.587 of the Act provides:

“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.”

1. In McLeod v Kulgera Trading Company Pty Ltd[1] Vice President Catanzariti held that s.587 was sufficiently broad to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.

1. In this matter, the Applicant has demonstrated an unwillingness to prosecute her case. The principle of ‘a fair go all round’ applies to both employers and employees. I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources responding to a claim that the Applicant appears to have had no intention of following through.

1. I adopt the approach taken by Vice President Catanzariti and find that “fairness, justice, equity and good conscience”[2] warrant the dismissal of this application.

ORDER

1. The application lodged by Mr Kyal Penhall pursuant to s.394 of the Act on 6 June 2023 is dismissed for want of prosecution pursuant to s.587 of the Act.

COMMISSIONER

[1][2014] FWC 2112.

[2] Ibid [10].

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