Mr Adam Landsberry v Queensland Coastal Plumbing Pty Ltd
[2023] FWC 1252
•29 MAY 2023
| [2023] FWC 1252 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Adam Landsberry
v
Queensland Coastal Plumbing Pty Ltd
(C2023/50)
| COMMISSIONER DURHAM | BRISBANE, 29 MAY 2023 |
Application to deal with contraventions involving dismissal - application dismissed under s.587.
On 4 January 2023, Mr Adam Landsberry (Mr Landsberry/the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving dismissal from his employment with Queensland Coastal Plumbing Pty Ltd (the Respondent).
On 14 February 2023, the Applicant advised a Commission staff conciliator by telephone that they wanted to take some time to consider whether he wanted to discontinue or proceed.
On 12 April 2023, the Applicant was called by a Commission staff conciliator to confirm whether the Applicant wanted to proceed or discontinue with the matter. The Applicant did not answer the call and a voicemail was left.
On 18 April 2023, I issued a notice of listing and directions requiring the parties to file material by certain dates and notified the parties of a determinative conference/hearing to be convened by video on 10 June 2023.
In addition to issuing a notice of listing and directions, my Associate sent the following email at 3:10pm on the same day:
“Dear parties,
I refer to the above matter and advise Commissioner Durham has carriage. All further correspondence directed to the Fair Work Commission (the Commission) in respect of this matter is to be sent to Commissioner Durham’s Chambers at the contact details below, copying in the other parties to this matter.
The matter will be listed for hearing to determine the Respondent’s jurisdictional objection that there was no dismissal, by video on Microsoft Teams, on Monday 5 June 2023. A formal Notice of Listing and Directions will be issued shortly.
Our records indicate that there have been several attempts to contact the Applicant in order to confirm whether they intend to proceed with their application. As such, Chambers requires the Applicant to provide an update on the matter, with respect to whether they intend to proceed with their application, by close of business today, Tuesday 18 April 2023.“
On 19 April 2023, as the Applicant did not respond, my Associate attempted to contact the Applicant multiple time to confirm whether the Applicant intended to proceed or discontinue the application, however the calls went unanswered and several voicemail were left.
In addition to the telephone calls to the Applicant, my Associate sent the following email at 1:54pm on the same day:
“Dear Mr Landsberry and Mr Gaffney,
I refer to my previous email below and voice mails left on the contact numbers provided to the Commission.
Please provide an update to Chambers with respect to whether the Applicant intends to proceed with his application, by close of business today, Wednesday 19 April 2023.”
On 20 April 2023 at 1:25pm, the Applicant had still not responded to communications, my Associate sent the following email to the Applicant:
“Dear Mr Landsberry and Mr Gaffney,
I refer to the previous emails below and note that Chambers is yet to receive an update on the status of the application.
Notwithstanding, parties are reminded that the Directions for the filing of material still require compliance and the Listing for hearing remains on foot.
Should the Applicant wish to discontinue this matter, please see attached F50 Notice of Discontinuance which is to be completed and returned to Chambers by way of email, with the Respondent copied in.”
On 4 May 2023, the Applicant had still not provided a response, my Associate attempted to contact the Applicant to confirm whether the Applicant intended to proceed or discontinue the application, however the call went unanswered and a voicemail was left.
On 16 May 2023 at 4:04pm, the Applicant failed to file his material as directed, as such my Associate sent the following email to the Applicant:
“Dear Mr Landsberry,
Reference is made to the directions (attached) issued on 18 April 2023 directing the Applicant to file in the Commission and serve a copy on the Respondent, by no later than 4.00pm Tuesday, 16 May 2023, the following:
1.An outline of submissions in relation to jurisdiction of the application
addressing the Respondent’s objection that the Applicant was not
terminated on the employer’s initiative (s.386(1)(a) Fair Work Act 2009);
and2.A witness statement for the Applicant and each of the witnesses the
Applicant intends to call at the jurisdiction hearing, including any
documentary material upon which the Applicant intends to rely.It is noted that you were due to provide the above by today. Chambers is not in receipt of any material or a request for an extension.
You are directed to advise by 26 May 2023 the reason for material not being submitted and if you intend to pursue or withdraw the matter. In the event of no response or contact from you, your application may be dismissed for reason of want of prosecution under s.587 of the Fair Work Act 2009.
A physical follow up letter will be sent to your address via express post.”
The letter was also express posted to the Applicant at the address listed in the Form F2 Application.
To date, no correspondence or telephone contact has been received from Mr Landsberry.
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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
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]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Landsberry has failed to respond to various correspondence from chambers, and provide any reasonable explanation to the Commission regarding this failure to respond. Mr Landsberry has shown no willingness to prosecute his case and has taken no steps to do so.
In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter without examining the merits where the Applicant has failed to prosecute their case.
After considering the numerous attempts to engage Mr Landsberry in his application to the Commission, including his failure to comply with directions, 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 pursuant to s.587(3)(a) of the Act.
An order to that effect will issue with this decision.
COMMISSIONER
[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].
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