Malcolm John Blackledge v Hovey Manpower Trust

[2024] FWC 1442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Malcolm John Blackledge
v

Hovey Manpower Trust

(U2024/3883)

DEPUTY PRESIDENT EASTON

SYDNEY, 4 JUNE 2024

Application for an unfair dismissal remedy

On 4 April 2024 Mr Malcolm John Blackledge made an application under s.394 of the Fair Work Act 2009 (Cth), claiming to have been unfairly dismissed by the Hovey Manpower Trust.

On 10 April 2024 Commission staff sent correspondence to Mr Blackledge by email raising a concern that the Hovey Manpower Trust may not be a national system employer. Mr Blackledge was told that the Commission may not have jurisdiction to deal with his application and he was encouraged to seek advice. Mr Blackledge was asked to indicate whether he wanted to proceed with his application within 14 days and was warned that his application may be dismissed if he did not respond. Mr Blackledge did not respond to this correspondence.

On 11 April 2024 Commission staff attempted to contact Mr Blackledge by telephone to discuss his application. Mr Blackledge did not answer the call. Later that day Commission staff made a further attempt to contact Mr Blackledge by telephone to discuss his application without success.

Commission staff made a further attempt to contact Mr Blackledge by telephone on 22 April 2024. Once again Mr Blackledge did not answer the call.

On 1 May 2024 a further email was sent to Mr Blackledge about whether the respondent was a National System Employer. This email included copies of the earlier emails and advised Mr Blackledge that if he did not respond by 3 May 2024 then his matter might be dismissed. Once again Mr Blackledge did not respond.

On 7 May 2024 the Commission made on final attempt to contact Mr Blackledge by telephone. Once again Mr Blackledge did not answer the call.

To date, Mr Blackledge has not contacted the Commission or provided any further information.

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.

…

(3)The FWC may dismiss an application:
(a)on its own initiative; or

(b) on application.

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

Mr Blackledge has not answered calls from Commission staff for several weeks and he has not responded to several emails from Commission staff. Mr Blackledge appears to have abandoned his application. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Blackledge’s application.

I have separately made an order to this effect (PR775610).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Malcolm John Blackledge, sought relief under section 394 of the Fair Work Act 2009, claiming that he had been unfairly dismissed by the Hovey Manpower Trust. The matter was before the Fair Work Commission, with Deputy President Easton presiding over the case, which was heard in Sydney on 4 June 2024. Mr Blackledge's application was made on 4 April 2024, but his subsequent lack of response to attempts by the Commission to contact him, and his failure to provide any further information, led to the Commission questioning whether the Hovey Manpower Trust was a national system employer, a matter that would determine its jurisdiction.

The primary legal issue the court had to decide was whether Mr Blackledge's lack of participation in his own case justified the dismissal of his application. The court considered section 587 of the Act, which allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings. The court examined whether Mr Blackledge had effectively abandoned his application and whether the Commission had afforded him procedural fairness in its attempts to contact him. The court noted that Mr Blackledge had failed to respond to multiple communications from the Commission, including emails and phone calls, and had not participated in the proceedings in any manner.

The court found that Mr Blackledge had not answered calls from Commission staff for several weeks and had not responded to several emails from Commission staff, indicating that he had abandoned his application. The court concluded that Mr Blackledge's conduct showed he was no longer willing to participate in his own case. The court referenced Viavattene v Health Care Australia [2013] FWCFB 2532 to support its decision that the Commission is not required to persevere with an application when the applicant has abandoned it. The court was satisfied that the dismissal of Mr Blackledge's application under section 587 was appropriate and issued an order to that effect.

The court ordered that Mr Blackledge's application be dismissed. This decision was made on the basis that Mr Blackledge had not participated in his own case and had effectively abandoned his application. The court's order was issued to ensure that the Commission could proceed with other matters without being impeded by Mr Blackledge's inactivity.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established