Mr Brett Coustley v Oz Wide Industries Pty Ltd
[2024] FWC 3215
•21 NOVEMBER 2024
| [2024] FWC 3215 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Brett Coustley
v
Oz Wide Industries Pty Ltd
(U2024/8638)
| COMMISSIONER SIMPSON | BRISBANE, 21 NOVEMBER 2024 |
Application for an unfair dismissal remedy - non-compliance with directions - want of prosecution - application dismissed
On 24 July 2024, Mr Brett Coustley (Mr Coustley / the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), through his representatives Law on Lydiard, alleging that he had been dismissed from Oz Wide Industries Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.
The matter was allocated to me on 17 September 2024. The matter was listed for a Case Management Conference/Directions Hearing (Directions Hearing) to commence at 10:00am on 21 October 2024.
On 18 September 2024, the Respondent filed a Form F3 Employer’s Response raising a jurisdictional objection to the application on the basis that the Applicant had not been dismissed.
In the afternoon of 18 October 2024, my chambers sent an email to the parties seeking confirmation of their attendances and best telephone contact numbers prior to the Directions Hearing on 21 October 2024. The email was sent to the email addresses listed for the Applicant’s representative and the Applicant on the Form F2 Application, and to the Respondent’s email address listed on its Form F3 Employer’s Response. The Applicant’s representative responded to chambers several minutes later advising they had not been able to contact the Applicant. About 10 minutes following that email, my chambers received a further email from the Applicant’s representative advising they had subsequently spoken with Mr Coustley, wished to advise he would be in attendance on Monday, and simultaneously lodged a Form F54 giving notice they had ceased acting as the Applicant’s representative. The Respondent subsequently confirmed its attendance as well by email.
At the Directions Hearing, Mr Coustley appeared for himself and the Respondent was represented by its sole director Mr Marshall Horne. The Applicant confirmed he was now representing himself. A hearing date of 22 November 2024 was set, along with Directions for the filing of material for determination of both the Respondent’s jurisdictional objection that the Applicant had not been dismissed and the substantive merits of the application. During the Directions Hearing, it emerged there was some factual contention between the parties such that I indicated the Directions would be issued in writing also providing an opportunity for parties to file material regarding whether the Respondent is a small business employer and had complied with the Small Business Fair Dismissal Code. The Applicant’s attendance at the listing is the last communication from the Applicant.
My chambers issued the Notice of Listing and Directions to parties on 22 October 2024. The Directions required the Applicant to file material addressing the merits of his application and the Respondent to file its material regarding the jurisdictional issues by no later than 5:00pm on Monday, 4 November 2024. The Directions then required the Applicant to file material responding to the Respondent’s jurisdictional material and the Respondent to file its material regarding the application’s merits by no later than 5:00pm on Monday, 18 November 2024.
On the morning of 4 November 2024, the Respondent filed two witness statements attached to an email to chambers which was not copied to the Applicant. Several minutes later, my chambers forwarded the email attaching the two witness statements to the Applicant, confirming receipt of same and reminding parties to copy each other into correspondence.
The Applicant did not file his material later that day or at any point thereafter.
On the afternoon of 15 November 2024, my chambers issued an email to parties which attached the Respondent’s material of 4 November 2024, and a copy of each of the original emails of 22 October 2024 which issued the Notice of Listing and Directions to each party separately. The email of 15 November 2024 read as follows:
“Dear parties,
Reference is made to the above matter and directions issued to parties by Commissioner Simpson on 22 October 2024, found on the second page of the document entitled ‘ASCListing’.
It has come to Chambers’ attention that the Applicant did not file any material addressing the merits of his application by 4 November 2024 in accordance with the directions.
Chambers seeks an explanation for the Applicant’s failure to comply with that direction.
Parties are reminded the Directions remain on foot, and that the Directions outline parties’ respective obligations to file further material by no later than 5:00pm on Monday, 18 November 2024.”
Neither party responded to my chambers’ email and no further material was filed with my chambers by that deadline.
At 9:17am on 19 November 2024, my chambers issued the following email to parties:
“Dear parties,
Chambers again refers to the directions issued to parties by Commissioner Simpson on 22 October 2024, found on the second page of the document entitled ‘ASCListing’.
Applicant’s application and material
Mr Coustley was directed to file his submissions and witness statements in relation to the merits of his application by 5:00pm on Monday, 4 November 2024. He was also directed to file his submissions and witness statements in relation to the Respondent’s jurisdictional objections by 5:00pm on Monday, 18 November 2024.
Chambers has not received any material from Mr Coustley, has not received any extension request from Mr Coustley, and has not received any response to Chambers’ email below.
By no later than 5:00pm (QLD time) on Tuesday, 19 November 2024, Mr Coustley is directed to indicate whether he intends to pursue or withdraw his application. If he intends to pursue his application, he is also directed to advise the reasons as to his failure to file any material.
If Mr Coustley fails to respond to this email advising whether he intends to pursue or withdraw his application by that time, the Commissioner will consider whether to dismiss his application under s.587 of the Fair Work Act 2009.
Respondent’s material
The Respondent was directed to file its material in relation to the merits of the Applicant’s application for an unfair dismissal remedy by no later than 5:00pm on Monday, 18 November 2024.
Chambers is only in receipt of material filed on 4 November 2024 by the Respondent.
By no later than 5:00pm (QLD time) on Tuesday, 19 November 2024, the Respondent is directed to advise whether its material lodged on 4 November 2024 is the entirety of its material that it wishes to rely upon for the hearing of this matter”.
My chambers did not receive a response to that email from either party and sent the following email at 11:15am on 20 November 2024:
“Dear parties,
Chambers is not in receipt of any correspondence from either party to chambers’ correspondence below. The Applicant has not indicated his intentions with his application.
On that basis, the hearing of Mr Coustley’s application originally listed to commence at 10:00am AEST on Friday 22 November 2024 has been vacated and will not proceed.
The Commissioner directs Mr Coustley to indicate whether he intends to pursue or withdraw his application by no later than 9:00am (QLD time) tomorrow, Thursday 21 November 2024.
If Mr Coustley fails to respond to this email advising whether he intends to pursue or withdraw his application by that time, the Commissioner will dismiss Mr Coustley’s application under s.587 of the Fair Work Act 2009 and the matter will then be closed.”
The Applicant did not respond.
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 of relief from a beneficial statutory provision.[2]
In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the Applicant has failed to prosecute their case without examining the merits.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Notwithstanding the Applicant was previously engaged in prosecuting his matter by engaging in the Directions Hearing, subsequent to his attendance at the listing, the Applicant has since failed to respond to any correspondence from chambers and has failed to provide any reasonable explanation to the Commission regarding these failures or otherwise convey his intentions in relation to his application. On that basis, I regard the Applicant as now showing no willingness to prosecute his case and having taken no steps to do so following his attendance at the Directions Hearing of 21 October 2024.
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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