Mark Nash v Sang Park XL Total Construction

[2021] FWC 5947

[2021] FWC 5947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mark Nash
v
Sang Park XL Total Construction
(C2021/2411)

DEPUTY PRESIDENT BINET PERTH, 24 SEPTEMBER 2021

Application to deal with contraventions involving dismissal – application dismissed pursuant to s.587

[1] On 28 April 2021 Mr Mark Nash (Mr Nash) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging Sang Park XL Total Construction (Sang Park) contravened the general protection provisions of the FW Act by discriminating against him.

[2] On 19 July 2021, the parties participated in a staff conciliation conference, however the issues in dispute could not be resolved. At the conference Sang Park raised two objections to the Application, firstly that Mr Nash was not an employee of Sang Park and secondly that he was not dismissed by Sang Park (Jurisdictional Objections).

[3] On 10 August 2021, directions were issued to the Parties (Directions). Paragraph [5] of the Directions, required Mr Nash to file with the FWC and serve on Sang Park by 4pm on Thursday 19 August 2021 an outline of submissions, any evidence on which he relied and copies of any authorities on which he relied in relation to the Jurisdictional Objections. The Directions stated that compliance with the Directions was mandatory and that a failure to comply may disadvantage the party concerned.

[4] Mr Nash failed to file any materials in accordance with the Directions or seek an extension to do so within the timeframes set out in the Directions. On 20 August 2021, Chambers wrote to Mr Nash and informed him that he would need to apply for an extension to file his materials late. Mr Nash was directed to provide reasons for his failure to file materials in accordance with the Directions by Monday 23 August 2021. Mr Nash was also directed to file the materials set out in the Directions under paragraph [5] Monday 23 August 2021. Mr Nash was informed that a failure to do so may result in the Application being dismissed.

[5] Mr Nash replied to the correspondence from Chambers on 20 August 2021 and indicated that he would be prepared to resolve the Application in exchange for the payment of the sum of $500. Sang Park were directed to advise Mr Nash by 4pm 20 August 2021 if it was prepared to resolve the Application on those terms. Chambers informed the Parties that the Directions and Hearing date would not be vacated until Mr Nash filed a Form F50 Notice of Discontinuance with the FWC.

[6] Sang Park did not inform Chambers that it wished to accept the terms of settlement proposed by Mr Nash. Nor is there is no evidence before me to suggest that Sang Park indicated to Mr Nash that it would accept those terms.

[7] On 25 August 2021 Chambers again reminded Mr Nash that he was required to file his materials in support of the Application.

[8] On 26 August 2021, Mr Nash informed Chambers that his attention was prioritised in another legal matter. He provided no indication of the nature of those legal matters or if or when he would file his materials in relation to the Application.

[9] On 2 September 2021 Mr Nash was informed that in the absence of him filing any materials, I proposed to dismiss the Application pursuant to section 587 of the FW Act. Mr Nash was invited to make submissions providing reasons as to why the Application should not be dismissed and evidence or other documentary material supporting those reasons by 3 September 2021. 

[10] Later the same day Mr Nash responded to Chambers repeating that his attention was prioritised by a different legal matter. He provided no evidence in support of this and provided no indication of if or when he might file his materials in relation to this Application.

[11] Section 587 of the FW 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.”

[12] Sub-section 587(2) prohibits the FWC relying on section 587 to dismiss an application made pursuant to section 365 on the grounds that the application is frivolous, vexatious or with no reasonable prospects of success. It does not however prevent the FWC from relying on section 587 to dismiss dismissing an application made pursuant to section 365 per se.

[13] Nor does sub-section 587(2) limit the grounds on which the FWC may dismiss an application made pursuant to section 365 to only those circumstances in which the application is not made in accordance with the FW Act.

[14] For example in Mcleod v Kulgera Trading Company Pty Ltd, 1 Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC’s repeated attempts to get in contact with her and had failed to participate in a teleconference.

[15] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health 2 (Tomas) in which she stated:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”

[16] In a number of cases since the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC.

[17] The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. The power to dismiss a substantive application should only be exercised cautiously and sparingly 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

[18] However, in all of the circumstances, I am satisfied that Mr Nash was aware of what was required of him regarding compliance with the directions. Despite being given multiple opportunities to file his materials and assistance and guidance to do so Mr Nash has failed to file any materials in support of his Application.

[19] Due to the history of non-compliance, I am not satisfied that Mr Nash is likely to comply with further directions of the FWC.

[20] In the circumstances, and on balance, it is appropriate that the Application be dismissed for want of prosecution under section 587 of the Act.

[21] An order to this effect will issue with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2014] FWC 2112.

 2   [2011] FWA 5458.

 3   Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925.