Luke Earle v Total Family Care Pty Ltd T/A Total Family Care

[2018] FWC 4807

[2018] FWC 4807

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Earle
v
Total Family Care Pty Ltd T/A Total Family Care
(U2018/3934)

COMMISSIONER WILSON MELBOURNE, 17 AUGUST 2018

Application for an unfair dismissal remedy – application dismissed for want of prosecution.

[1] On 13 April 2018, Mr Luke Earle filed an application with the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was filed on Mr Earle’s behalf by his legal representative.

[2] In his Form F2 – Unfair Dismissal Application, Mr Earle advised that he commenced employment with Total Family Care Pty Ltd (Total Family Care) on 18 June 2017. Mr Earle further advised that he was notified of his dismissal on 22 March 2018, and that it took effect on the same day.

[3] On 16 May 2018, the Commission was informed by Total Family Care that a number of its staff members have Intervention Orders against Mr Earle and that no direct contact was permitted between them. Later the same day, an email was received by the Commission attaching two copies of Interim Intervention Orders made on 30 April 2018 by the Magistrates’ Court at Frankston.

[4] The matter was listed for a conciliation on 17 May 2018, but at the request of Total Family Care, this was cancelled and the matter was referred to arbitration.

[5] On 30 May 2018, the Commission telephoned Mr Earle and advised him that in light of the Intervention Orders, he was required to communicate via his legal representative. Mr Earle was further advised that he should inform the Commission immediately if he obtained new representation or if he ceased to have representation. Mr Earle confirmed his understanding of this and further advised the Commission that he was presently represented but foreshadowed that his representative may cease acting for him due to his inability to afford the legal fees.

[6] On 15 June 2018, a Notice of Listing was sent to the parties scheduling an Extension of Time Conference/Hearing, by telephone, on 6 July 2018. Mr Earle was directed to file his material by no later than noon on 22 June 2018 and Total Family Care was directed to file its reply material by no later than noon on 29 June 2018. On the same day, correspondence was sent to the parties, via email, advising that due to the Intervention Orders against Mr Earle, the Extension of Time Conference/Hearing may proceed only if neither of the protected persons named in the Intervention Orders represented Total Family Care at the Hearing and if Mr Earle remained represented by his representative at the Hearing, with all communication from Mr Earle coming through his representative at all times.

[7] On 19 June 2018, the Commission received correspondence from Mr Earle’s legal representative advising that it was no longer acting for Mr Earle in his unfair dismissal matter.

[8] On 20 June 2018, the Commission attempted to telephone Mr Earle in relation to the status of his legal representation. This was unsuccessful and a voicemail was left seeking a return call.

[9] On 26 June 2018, another attempt to telephone Mr Earle was made in relation to his overdue material. A voicemail was left seeking his urgent return call and advising that if he remained non-compliant with the directions, his matter would proceed to a non-compliance hearing. Later the same day, an email was sent to Mr Earle advising that if no material was received from him by noon on 27 June 2018, his matter would be listed for a non-compliance hearing on 29 June 2018.

[10] On 28 June 2018, a further attempt to telephone Mr Earle was made in relation to the non-compliance hearing. This was unsuccessful and a voicemail was left seeking his urgent return call. A Notice of Listing was subsequently sent to the parties scheduling the non-compliance hearing for 29 June 2018.

[11] The non-compliance hearing proceeded before Deputy President Masson on 29 June 2018. Neither Mr Earle nor Total Family Care attended the non-compliance hearing. Following this, an email was sent to Mr Earle directing him to file submissions providing reasons as to why the Commission should not dismiss his application. The email further directed that the material was to be filed by close of business on 4 July 2018.

[12] On 5 July 2018, a Notice of Listing was sent to the parties cancelling the Extension of Time Conference/Hearing.

[13] On 9 July 2018, further correspondence was sent to Mr Earle, via email, advising that his matter was being considered for dismissal pursuant to s.587 of the Act because of his failure to provide the necessary material to the Commission and his failure to attend the non-compliance hearing. The correspondence directed Mr Earle to provide submissions with reasons as to why the Commission should not dismiss his application by no later than close of business on 18 July 2018. Further, the correspondence advised that if the material was not received, his application for relief from unfair dismissal would be dismissed.

[14] To date, Mr Earle has not filed any material with the Commission.

[15] Section 587 of the Act provides as follows:

“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.”

[16] The words ‘without limiting when the FWC may dismiss an application’ in s.587(1) of the Act make clear that the jurisdiction of the Commission to dismiss an application is not restricted to the circumstances set out in ss.587(1)(a), (b) and (c).

[17] The Full Bench in Sayer v Melsteel Pty Ltd 1held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[18] In Viavattene v Health Care Australia 2 the Full Bench stated at [39]:

“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”

[19] Mr Earle has failed to respond to all the attempts made by the Commission to contact him since his representative advised it had ceased acting for him. There is no reasonable explanation as to why Mr Earle did not respond to the emails sent to him or return the phone calls made to him. The emails were sent to the email address nominated on Mr Earle’s application and the Commission had previously been able to reach him on his telephone number. Mr Earle has shown no willingness to prosecute his case and has provided no explanation for either his failure to comply with directions or his non-attendance at the non-compliance hearing. In these circumstances, I am satisfied that Mr Earle has failed to prosecute his application. In accordance with s.587 of the Act, the application is dismissed for want of prosecution. An order giving effect to this decision will be issued today.

COMMISSIONER

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 1   [2011] FWAFB 7498 at [19].

 2   [2013] FWCFB 2532.