Mr Billy Spowage v

[2023] FWC 2718

[2023] FWC 2718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Billy Spowage
v

Wool Exchange Hotel Pty Ltd

(U2023/8302)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 17 OCTOBER 2023

Application for an unfair dismissal remedy - application dismissed pursuant to s.587 of the Act.

1. On 1 September 2023, Mr Billy Spowage made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Spowage’s employment was terminated by Wool Exchange Hotel Pty Ltd (Respondent) on 28 August 2023.

1. The matter was listed for conciliation on 2 October 2023. Mr Spowage failed to attend the conciliation without providing reasons prior to the scheduled conciliation. The matter was subsequently allocated to my chambers and listed for a mention/directions hearing on 16 October 2023.

1. On 12 October 2023, correspondence was sent from my Chambers directing the parties to provide appearances by 13 October 2023.  Mr Andrew Wood, Owner/Director provided a response in accordance with the directions. Further correspondence was sent to Mr Spowage however he failed to provide a response. 

1. On 16 October 2023, at the commencement of the hearing, several attempts were made to contact the Mr Spowage via telephone. Mr Spowage did not answer or respond to the Commission’s calls. The hearing commenced in Mr Spowage’s absence. Mr Wood appeared for the Respondent. During the Hearing, I informed the Mr Wood that Mr Spowage would be provided a final opportunity to contact the Commission, and that, if Mr Spowage did not do so, his application may be dismissed for want of prosecution.

1. At the conclusion of the hearing, an email was sent to the parties advising that the matter would be listed for a non-compliance hearing. The matter was listed for hearing on the afternoon of 17 October 2023.

1. On 17 October 2023, several attempts were made to contact Mr Spowage by telephone. My Chambers sent an email requesting that Mr Spowage provide reasons for his non-attendance at the mention/ directions hearing and should he fail to attend the non-compliance hearing, I may consider dismissing his Application for want of prosecution without further notice. Mr Spowage did not answer the Commission’s calls or respond to the emails.

Consideration

1. The Commission’s powers in relation to dismissing applications made under s.365 of the Act are set out in s.587. That section provides as follows:

“

(1)         587     Dismissing applications

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. Section 587(1) of the Act makes clear that the circumstances in which the Commission may dismiss an application are not limited to those addressed in s.587. While an application made under s.365 of the Act cannot be dismissed on the grounds identified in s.587(2) of the Act, it is open to the Commission to dismiss such an application for want of prosecution by an applicant.

1. Since 2 October 2023, the Commission has made numerous unsuccessful attempts to contact Mr Spowage regarding his application. Mr Spowage failed to attend the Conciliation and Mention and Directions Hearing without providing notice or reasons. He was advised that the likely outcome of his failure to contact the Commission would be that his application would be dismissed for want of prosecution. Mr Spowage has not contacted the Commission as requested and failed to attend the non-compliance hearing.

1. I am satisfied in all the circumstances that the Applicant does not intend to prosecute the Application and for the reasons outlined I have determined to exercise my powers under s.587(3)(a) of the Act to dismiss the Application on my own initiative.

1. The Application is dismissed. An Order[1] giving effect to this will be issued concurrently with this Decision.

COMMISSIONER

[1] PRxxxxx.

Printed by authority of the Commonwealth Government Printer

<PR767353>