Michael Walker v Vision Design & Manufacturing Pty Limited

[2023] FWC 2916

[2023] FWC 2916

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Michael Walker
v

Vision Design & Manufacturing Pty Limited

(C2023/5172)

DEPUTY PRESIDENT BOYCE SYDNEY, 7 NOVEMBER 2023

Application to deal with contraventions involving dismissal – failure to comply with Directions – failure to contact the Commission – Application dismissed

Overview

1. On 28 August 2023, Mr Michael Walker (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being a general protections involving dismissal application (Application). The Respondent to the Application is the Vision Design & Manufacturing Pty Limited.

1. Direction [3] of the Directions issued on 5 October 2023 reads:

“[3]      By 4.00pm AEDT on Thursday, 2 November 2023, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in opposition to the no dismissal objection raised.”

1. The Applicant did not comply with Direction [3].

1. On 3 November, the following email was sent to the Applicant (Show Cause Email):

“Dear Mr Walker

Re: C2023/5172 - Mr Michael Walker v Vision Design & Manufacturing Pty Limited

I refer to the matter above.

Background

On 5 October 2023, the Fair Work Commission issued Directions in this matter.

Order 3 of those Directions read as follows:

[3]          By 4.00pm AEDT on Thursday, 2 November 2023, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in opposition to the no dismissal objection raised.

To date, Chambers has not received any materials in compliance with Order 3.

Further directions regarding show cause

In view of the foregoing, the Deputy President directs as follows:

[1]         The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 12:00pm AEDT Monday, 6 November 2023.

[2]         If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.

Yours faithfully

[Associate]”

1. Chambers received no correspondence or other communication from the Applicant in relation to the Show Cause Email.

Legislative Provisions

1. Section 587 of the Act reads:

“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.”

1. In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:

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

Consideration

1. As the Applicant has made no attempt to comply with Direction [3] and/or the Show Cause Email, and has failed to contact the Commission or otherwise explain their non-compliance, I have decided to dismiss their Application.

1. In dismissing the Applicant’s Application, I find that the Applicant’s non-compliance with Direction [3] and the Show Cause Email to be wholly unexplained, and wholly unsatisfactory.

1. Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

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