Mark Wilson v Aiatsis

[2019] FWC 8547

[2019] FWC 8547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Wilson
v
AIATSIS
(U2019/9027)

DEPUTY PRESIDENT KOVACIC CANBERRA, 18 DECEMBER 2019

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

[1] On 14 August 2019 Mr Mark Wilson (the Applicant) lodged an application under s. 394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS – the Respondent) on 24 July 2019.

[2] Mr Wilson’s application was listed for a conciliation conference before one of the Fair Work Commission’s (the Commission) conciliators on 11 September 2019. Mr Wilson did not attend that conference. The conciliator emailed Mr Wilson and the Respondent later that day as set out below:

“Conciliation was scheduled for this matter for 9:15 am on 11 September 2019.  I called the number you listed as your contact number at 9:16 am. 9:20 am, 9:25am and 9:38am but there was no answer.  I left voice mail messages for you to call me. I have not yet heard from you.

If you want this matter to proceed via a further conciliation, then you need to email me your request within two working days, together with advice of any dates or times for which you would be unavailable.I will then refer your request to the Unfair Dismissals Team in Melbourne for consideration. Any such request will be dealt with having regard to all the circumstances and, in particular, whether the non-availability of the Applicant can be satisfactorily explained and whether both parties request another listing.

If I do not hear from you within the next two working days I will refer the matter directly for arbitration before a Member of the Fair Work Commission (the Commission).”

[3] In the absence of any response from Mr Wilson, his application was allocated to me on 18 September 2019. The application was subsequently listed for a telephone mention and/or directions hearing at 2:00pm on 23 October 2019. Mr Wilson did not attend the telephone mention and/or directions hearing, nor did he contact my chambers to say he was unavailable or to explain his non-attendance. Numerous attempts to contact Mr Wilson by telephone at the scheduled time of the hearing were unsuccessful. Later that afternoon my chambers emailed Mr Wilson in the following terms:

“I refer to the telephone mention/directions that was due to take place at 2pm today (23 October 2019). I made several attempts to contact you on … but was unsuccessful.

Deputy President Kovacic now seeks an explanation from you as to why you both did not appear at today’s mention/directions. You must provide an explanation by no later 5pm on Friday 25 October 2019.”

[4] No response was received from Mr Wilson.

[5] On 15 November 2019 my chambers again sent an email to Mr Wilson. The email stated:

“I refer to the above application.

Can you please advise by close of business Wednesday, 20 November 2019 if you intending [sic intend] on pressing the application.

If you do not intend on proceeding with the application please complete the attached form F50 Notice of discontinuance and return to Chambers by close of business Wednesday, 20 November 2019.” (Emphasis as per original)

[6] On 25 November 2019 the Respondent emailed the Commission with the following inquiry:

“Can you please advise how as an employer, we can go about applying for the dismissal of an unfair dismissal application on the grounds of ‘unreasonable failure by applicant’ where the applicant failed to attend a conference or hearing at the Commission?

Any advice would be greatly appreciated.”

[7] The Commission responded on 28 November 2019 suggesting that the Respondent either seek legal advice or alternatively refer to the Commission’s Unfair dismissals benchbook.

[8] Also on 28 November 2019 and in the continuing absence of any response or contact from Mr Wilson, the Commission yet again sent another email to him. The email read:

“You have not responded to the below correspondence, if no response is received by 4pm Friday 29 November 2019, the Deputy President will assume that you no longer wish to pursue your application.”

[9] On 29 November 2019 AITSIS forwarded to the Commission several abusive and offensive emails sent to its Chief Executive Officer by Mr Wilson. Of note, the emails were all sent from the email address used by the Commission to correspond with Mr Wilson.

[10] On 11 December 2019 the Commission yet again wrote to Mr Wilson. The correspondence read as follows:

“I refer to your unfair dismissal application which was received by the Fair Work Commission (the Commission) on 14 August 2019.

Your application was listed for a conciliation conference on 11 September 2019 before one of the Commission’s conciliators. You did not attend that conference and did not respond to subsequent correspondence sent to you on that day by the Commission.

Your application was then listed for a telephone mention and directions hearing on 23 October 2019. Again you did not attend. My chambers subsequently wrote to you on my behalf on 24 October 2019 seeking an explanation as to why you did not attend. In the absence of a response my chambers wrote to you again on 15 and 29 November 2019 seeking an indication as to whether you intended to press your application. Again no response was received.

In circumstances where you failed to attend either the abovementioned conciliation conference and mentions and directions hearing have not responded to the various correspondence referred to above, I seek an indication by no later than 4pm on Friday, 11 December [sic 13 December]as to whether you intend to press your application. Should you not respond your application may be dismissed without further recourse to the parties pursuant to s. 587(1) of the Fair Work Act 2009 (Cth) and at the Commission’s own initiative [s. 587(3)(a)].

Alternatively, if you do not intend to proceed with your application please complete and return the Form F50 attached to this email.” (Emphasis as per original)

[11] Once again Mr Wilson has not responded to the above email or made any contact with the Commission regarding his application.

[12] It is clear from the above chronology that Mr Wilson has taken absolutely no steps to prosecute his unfair dismissal application despite repeated attempts by the Commission to ascertain his intentions regarding the matter. Mr Wilson has also failed to attend the conciliation conference and subsequent telephone mention and/or directions hearing convened by the Commission regarding his application.

[13] Against that background and as foreshadowed in the Commission’s most recent correspondence to Mr Wilson, I have decided to dismiss his application pursuant to s.587 of the Act.

[14] By way of background, s.587 sets out the Commission’s general powers to dismiss an application. Specifically, s.587 provides:

“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.”

[15] As stated in the legislative note to s.587(1) of the Act, another provision of the Act under which the Commission can dismiss an unfair dismissal application is s.399A of the Act. However, that power is only exercisable upon application by the employer. In this case, AIATSIS has not made an application under s.399A of the Act.

[16] As can be seen from the terms of s.587, the provision does not limit the grounds upon which the Commission may on its own motion dismiss an application. Nevertheless, as noted by Deputy President Sams in Nick Williams v Sydney Gay & Lesbian Business Association t/a Sydney Gay & Lesbian Business Association (Williams) 1 “[i]t has long been held by the Courts, Commissions and Tribunals 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”. Having regard to the above extract from the decision in Williams, in circumstances where the Commission has written to Mr Wilson on no less than five occasions regarding his failure to attend Commission proceedings and/or his application and received no response let alone any contact from him, the Commission can hardly be accused of dismissing his application hastily. It is clear that Mr Wilson has been given every opportunity to press his application and that he has failed to do anything whatsoever to press his application and/or to engage with the Commission at any time in the more than four months since he lodged his application.

[17] In deciding to dismiss Mr Wilson’s application I have also had regard to the views of the Full Bench in Peter Viavattene v Health Care Australia 2 which said:

“[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).” 3 (Underlining added)

[18] In my view, in circumstances where it appears that Mr Wilson has no intention of prosecuting his unfair dismissal application, it would be unfair and unreasonable to keep AIATSIS on tenterhooks regarding the matter. Further, continued efforts by the Commission to clarify Mr Wilson’s intentions regarding his application are in my view likely to be nothing more than a waste of time and resources.

[19] For all the above reasons and in the light of Mr Wilson’s persistent and continued failure to prosecute his unfair dismissal application, I have decided to exercise the discretion available to the Commission under s.587 of the Act to dismiss his application. An order to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWC 4399 at [12]

 2   [2013] FWCFB 2532

 3   Ibid at [39]