Luke Davis v Capescan Pty Ltd
[2022] FWC 459
| [2022] FWC 459 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Luke Davis
v
Capescan Pty Ltd
(U2021/10072)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 4 MARCH 2022 |
Application for an unfair dismissal remedy
On 8 November 2021, the Commission received an application from Mr Luke Davis (the Applicant) asserting he had been unfairly dismissed by Capescan Pty Ltd (the Respondent). On its face, it appeared that the unfair dismissal application had been made late. However, the parties disagreed as to when the dismissal took effect.
Directions were issued on 11 February 2022 concerning the programming of the matter (First Directions). The First Directions set out the potential consequences for non-compliance with the directions. Furthermore, a conference was convened on 16 February 2022, where it was explained to the parties that the matter would proceed to hearing. The purpose of the hearing would be to determine the date of dismissal, and if the unfair dismissal application had been made outside of the statutory period, whether the Applicant should be granted an extension of time in which to make the unfair dismissal application.
The Applicant was required to file his materials for the hearing on 18 February 2022. He did not do so. His non-compliance with the First Directions was raised with him by email on 21 February 2022. The Applicant was informed that should he require an extension of time to comply with the directions, such request was to be made by 23 February 2022 (Second Directions). Further, the Applicant was informed that if no correspondence was received, further directions regarding his non-compliance would be issued on 24 February 2022.
In addition to the Second Directions, Chambers telephoned the Applicant at approximately 11:35hrs on 21 February 2022 and informed him via voicemail that a non-compliance email had been sent, and that if he did not provide a reason for his non-compliance or request an extension in which to file materials by 16:00hrs on 23 February 2022, further action would be taken.
Having received no response from the Applicant in the requisite period, directions were issued on 24 February 2022, programming the matter for a hearing to determine whether the unfair dismissal application should be dismissed under s 587 of the Act (Third Directions). The Applicant was required to file his materials concerning the potential dismissal of his application by 28 February 2022.
In addition to the Third Directions, Chambers telephoned the Applicant and informed him via a voicemail that his unfair dismissal application was in danger of being dismissed and that he had to read the emails sent and comply with the directions issued.
No response was received from the Applicant regarding the Third Directions. It follows that the Commission will now consider whether to dismiss the application, pursuant to s 587 of the Act, on the basis that the application has no reasonable prospects of success.
Whilst both Applicant and Respondent were initially notified that the matter was listed for hearing, given the Applicant’s abject failure to comply with any directions, I decided it was appropriate to determine the matter on the papers. Parties were informed of the same on 1 March 2022.
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, Second and Third 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
Printed by authority of the Commonwealth Government Printer
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[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] PR738916.
Printed by authority of the Commonwealth Government Printer
<PR738915>
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