Lachlan McGarry v The Trustee for ATC Unit Trust T/A All Purpose Labour Hire (APL)

[2022] FWC 14

[2022] FWC 14

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lachlan McGarry
v

The Trustee For ATC Unit Trust T/A All Purpose Labour Hire (APL)

(U2021/10368)

DEPUTY PRESIDENT BEAUMONT PERTH, 5 JANUARY 2022

Application for an unfair dismissal remedy – s 587

1. On 16 November 2021, Mr Lachlan McGarry (the Applicant) filed an application for unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act). After making his application, the Applicant repeatedly failed to comply with the directions issued. It follows that I have decided to dismiss his unfair dismissal application under s 587(1)(c) of the Act for the following reasons.

1. Directions were initially issued on 16 December 2021 concerning the programming of the matter.  The directions set out the potential consequences of non-compliance.  However, the Applicant did not comply with the directions.

1. Chambers notified the Applicant of his non-compliance by email dated 24 December 2021.  The Applicant was directed to contact Chambers by 29 December 2021 to explain his non-compliance and to seek an extension of time in which to respond to the directions.  The Applicant did not contact Chambers.

1. Chambers caused another email to be sent to the parties on 30 December 2021, again noting the Applicant’s non-compliance with the directions.  On this occasion, reference was also made to Chambers’ attempts to contact the Applicant by telephone. Chambers had telephoned the Applicant on 24 December 2021 and then again on 30 December 2021.  Voicemails had been left for the Applicant on both occasions to contact Chambers immediately. 

1. The parties were informed that the Commission would now consider dismissing the unfair dismissal application under s 587 of the Act based on the Applicant’s repeated non-compliance with the directions. Again, there was no contact from the Applicant and no materials were filed in response to the directions issued regarding the potential dismissal of the unfair dismissal application.

1. Considering the lack of the contact from the Applicant, the parties were informed that the potential dismissal of the unfair dismissal application would be dealt with on the papers unless either party requested a hearing.  No request was received.

The legal framework

1. The Commission has power to dismiss an unfair dismissal application on its own initiative under s 587 of the Act. The basis for doing so – on this occasion, is that the application has no reasonable prospects of success.

1. 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]

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]

1. 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.

1. Whenever exercising the power to dismiss an application under s 587, 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.

Consideration

1. Having regard to the circumstances of this matter, I am satisfied that the unfair dismissal application has no reasonable prospects of success.  Since the matter was allocated to Chambers, the Applicant has taken no action to prosecute his case.  The Respondent submitted that the Applicant had not attended the initial conciliation conference with a staff conciliator.  Furthermore, said the Respondent, whilst the Applicant purported to be represented (the representative later withdrew), the representative said they had never spoken to the Applicant and were unaware that they were meant to attend the first conciliation conference before a staff member.  The Respondent further observed that the Applicant had not responded to the many attempts by the Commission to contact him. 

1. The Applicant’s repeated non-compliance with directions and absence of cogent reasons for the same, in addition to his non-responsiveness to Chambers’ telephone calls concerning the potential dismissal of his unfair dismissal application, have led me to this conclusion. 

Conclusion

1. 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).

1. 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] PR737296. 

Printed by authority of the Commonwealth Government Printer

<PR737295>