Michael King v Camilleri Constructions Trust T/A Carpentry

[2020] FWC 5704

[2020] FWC 5704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael King
v
Camilleri Constructions Trust T/A Carpentry
(U2020/12422)

DEPUTY PRESIDENT YOUNG MELBOURNE, 27 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 16 September 2020, Mr Michael King filed an application with the Fair Work Commission (Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act) (Application).

[2] On 18 September 2020 a notice of listing was issued to the parties listing the matter for conciliation on 5 October 2020. On 2 October 2020 the Commission sent a text message to the parties reminding them of the conciliation.

[3] The conciliation on 5 October 2020 could not proceed as Mr King was experiencing technical difficulties with his mobile phone. The Commission’s records indicate the Mr King advised the Commission of these technical issues subsequent to the conciliation. Correspondence was sent to the parties on 5 October 2020 advising that the matter would proceed to arbitration if the parties did not request a further conciliation within two working days. Neither party responded to this correspondence and accordingly the matter was referred to me for further programming.

[4] On 12 October 2020 my associate wrote to the parties advising that the matter would be listed for a telephone mention in the first instance (Mention) at 8:30 am on 15 October 2020. In addition to advising the date and time of the Mention, the email requested the parties provide names of attendees and contact numbers as soon as possible. A notice of listing confirming the Mention was also emailed to the parties at 3:41 pm the same day.

[5] Mr King did not confirm his attendance at, or contact number for, the Mention. Accordingly, at 2:45 pm on 14 October 2020 my associate emailed Mr King requesting that he confirm his attendance and contact number for the Mention as a matter of urgency. No response was received from Mr King.

[6] At 8:30 am on 15 October 2020 my associate attempted to telephone Mr King for the Mention on three occasions and three voice messages were left. Mr King did not answer or return my associate’s calls and accordingly, the Mention did not proceed. Later that morning my associate wrote to Mr King by email advising that in light of his non-attendance at the conciliation on 5 October 2020 and the Mention, as well as his failure to respond to the Commission’s email correspondence on 12 and 14 October 2020, I intended to dismiss his Application for want of prosecution pursuant to section 587 of the Act, unless submissions were provided by him as to why the application should proceed, by no later than 5:00 pm Thursday, 22 October 2020.

[7] No submissions were received from Mr King by 5:00 pm Thursday, 22 October 2020 and none have been provided as at the time of this decision.

Consideration

[8] Section 587 of the Act sets out when the Commission may dismiss an application. It 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.”

[9] In determining whether to dismiss a matter on its own initiative, the Commission is not limited to the matters specified in section 587(1)(a) to (c). The opening words ‘[w]ithout limiting when the FWC may dismiss a matter’ clearly confers a broader discretion. 1

[10] Mr King did not attend the conciliation, nor the Mention. He did not respond to correspondence sent by the Commission on 12 or 14 October. He did not provide any submissions as to why the Application should proceed, in circumstances where he was on notice that in the absence of any such submissions, I intended to dismiss the Application.

[11] I consider Mr King has failed to prosecute the Application. Accordingly, I have determined to dismiss the Application for want of prosecution, pursuant to section 587 of the Act.

[12] The Application is dismissed.

DEPUTY PRESIDENT

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 1   See also Kennedy v Complete Belting Solutions Pty Ltd[2013] FWC 2777 at [7].