Mark Whalley v Queensland Rail T/A Queensland Rail

[2021] FWC 245

[2021] FWC 245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Whalley
v
Queensland Rail T/A Queensland Rail
(U2020/12071)

COMMISSIONER SIMPSON BRISBANE, 19 JANUARY 2021

Application for an unfair dismissal remedy – application dismissed under s.587.

[1] On 8 September 2020, Mr Mark Whalley (the Applicant) applied to the Commission under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Queensland Rail (the Respondent).

[2] The matter was listed for conciliation conference before a Fair Work Commission staff conciliator on 24 September 2020. The matter did not settle and was allocated to me for consideration.

[3] I listed the matter for an initial directions hearing by telephone on 14 Ocotber 2020. Mr Whalley and his representative Mr Stephen Dryley-Collins of Supportah Ops Pty Limited appeared at the directions hearing as well as the Respondent. At the conclusion of the directions hearing I listed the matter for substantive hearing and issued written directions on 16 October 2020.

[4] The directions issued on 16 October required Mr Whalley to file material by 11 November 2020, The Respondent to file by 9 December 2020 and Mr Whalley to file anything in Reply by 23 December 2020.

[5] On 10 November 2020, Mr Dryley-Collins filed a Form F54 Notice of Representative Ceasing to Act for Mr Whalley.

[6] The Commission did not receive any material from Mr Whalley on 11 November 2020.

[7] On 13 November 2020 my Associate attempted to contact Mr Whalley to follow up on why his material had not been filed in accordance with directions. The call went unanswered and so a voicemail was left requesting Mr Whalley call chambers as soon as possible.

[8] Later that day on 13 November 2020, my chambers sent an email to Mr Whalley, copied to the Respondent, that read as follows:

“…As per the directions issued by Commissioner Simpson on 16 October 2020, your material was due to be filed with the Commission, and served on Queensland Rail, by 5:00pm Wednesday 11 November 2020.

The Commission has not received any material from you, nor has it received a request for an extension.

Please advise by 5pm Monday 16 November 2020, why your material has not been filed in accordance with the Commissioner’s directions…”

[9] A response was not received from Mr Whalley by 16 November 2020.

[10] On 24 November 2020, the Respondent sent an email to chambers that read as follows:

“…I wish to advise the Respondent has not received any correspondence from the Applicant with respect of the Commission’s below request.

Accordingly, the Respondent submits the Applicant has failed to comply with both the directions and subsequent request from the Commission and therefore it is within the powers of the Commission to dismiss this matter, and the Respondent seeks this outcome…”

[11] On 2 December 2020, my chambers sent further correspondence marked “Urgent” to Mr Whalley by email that read as follows:

“Dear Mr Whalley

Re: U2020/12071 - Whalley, Mark v Queensland Rail

On 16 October 2020 the Commissioner issued directions in the above matter requiring you to file material in support of your application by close of business 11 November 2020. No material has been received from you, nor has the Commission received a request for an extension.

Attempts were made to contact you on the number listed on your application. The number went straight to message bank on the numerous attempts to call you. An email was sent to you on 13 November 2020 requesting a response by close of business 16 November 2020 with an explanation as to why you did not file material in accordance with the Commissioner’s directions.

To date, no response has been received from you. You have made no attempt to contact the chambers of Commissioner Simpson to explain the reasons for not filing material in accordance with directions.

If no explanation is received from you in writing by close of business on Wednesday 9 December 2020, the Commissioner will give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.

The Respondent would also be at liberty to make a formal application that the unfair dismissal application be dismissed in accordance with s.399A of the Fair Work Act 2009…”

[12] To date no material, correspondence or telephone contact has been received from Mr Whalley.

[13] 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.”

[14] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[15] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 1 Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.2

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Whalley has failed to respond to various correspondence from chambers and has failed to file any material in the matter in accordance with directions issued. Mr Whalley has failed to provide any reasonable explanation to the Commission for his failure to comply with directions. Mr Whalley has shown no willingness to prosecute his case and has taken no steps to do so.

[17] In L. Sayer v Melsteel Pty Ltd, 3 the Full Bench held 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 these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution and I do so.

COMMISSIONER

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 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

 2   Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

 3   [2011] FWAFB 7498 at [19].