Mr Callum Mitchell v LT Plumbing Pty Ltd
[2025] FWC 274
•11 FEBRUARY 2025
| [2025] FWC 274 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Callum Mitchell
v
LT Plumbing Pty Ltd
(U2024/13822)
| COMMISSIONER REDFORD | MELBOURNE, 11 FEBRUARY 2025 |
Application for an unfair dismissal remedy; dismissal for want of prosecution
On 19 November 2024 Mr Callum Mitchell made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) against LT Plumbing Pty Ltd (the Respondent) seeking a remedy in respect to unfair dismissal. The Respondent objects to the application on the basis it says the termination of Mr Mitchell’s employment occurred as a result of a genuine redundancy.
The application was allocated to my chambers on 21 January 2025.
I listed the matter for a case management hearing, to occur via Video on 28 January 2025.
The Respondent attended the case management hearing on 28 January 2025, but Mr Mitchell did not.
At the appointed time, my associate contacted Mr Mitchell by phone and email to remind him to join the conference. During a brief conversation Mr Mitchell said he was at work and could not attend.
During the conference, the Respondent submitted that, on the basis of Mr Mitchell’s failure to attend the conference, the Commission should consider dismissing the application. I was also alerted to the fact that on two prior occasions Mr Mitchell had failed to attend conciliation conferences organised to occur with a Commission staff conciliator. The second of these conferences was apparently arranged at Mr Mitchell’s request, after he failed to attend the first. The Commission’s file in this matter records numerous attempts to contact Mr Mitchell made by Commission staff at the appointed times, to no avail.
I am prepared to treat the Respondent’s submission as an application made pursuant to s 587(3)(b) of the Act that this application be dismissed. I issued Directions on 28 January 2025 in relation to this application. The Directions provided as follows:
On 19 November 2024 Mr Callum Mitchell made an unfair dismissal claim against LT Plumbing Pty Ltd (LT Plumbing), in the Fair Work Commission.
However, since making the application, Mr Mitchell appears not to have properly participated in it.
This is a serious matter. Significant public resources are allocated to deal with unfair dismissal applications and a person’s failure to participate in the process properly can cause significant inconvenience and cost for the Commission and other parties to the proceeding.
In this matter, a conciliation conference was arranged in relation to Mr Mitchell’s application to take place on 6 December 2024. At very short notice, Mr Mitchell contacted the Commission to advise that he could not attend. It was too late to re-schedule the conference, and it went ahead – Mr Mitchell did not attend but the Respondent, LT Plumbing did.
Later, on 6 December 2024 Mr Mitchell contacted the Commission and asked that it be re-listed for a conciliation conference. As a result, at Mr Mitchell’s request another conference was arranged.
The second attempt at conference occurred on 20 January 2025. At the appropriate time, three attempts were made to contact Mr Mitchell, who was not in attendance. He could not be reached. Once again, the Respondent, LT Plumbing, attended the conference.
The matter was allocated to my chambers and listed for mention on 28 January 2025. At the appointed time, when there was once again no appearance for Mr Mitchell, he was contacted by phone by my Associate. He somewhat dismissively said that he could not attend for the matter during work hours.
The mention proceeded in Mr Mitchell’s absence, which meant that for the third time, the Respondent, LT Plumbing, attended a Commission proceeding in relation to this matter but Mr Mitchell did not.
During the mention held before me on 28 January 2025, LT Plumbing indicated it sought that Mr Mitchell’s application be dismissed.
The Commission has the power to dismiss an application in circumstances where a person is not participating in it properly including by their non attendance. This power arises under s 587 of the Fair Work Act 2009 (the Act) which provides
[Extract omitted]
Frequently, this section of the Act is the basis upon which the Commission will dismiss applications in circumstances where a party fails to comply with the Directions of the Commission, such as through non-attendance (see for example Viavattene v Health Care Australia [2013] FWCFB 2532 [39]).
In order to deal with LT Plumbing’s application that this application be dismissed in these circumstances, I intend to make directions that the parties file short written submissions about this question.
I will determine the question of whether or not the application should be dismissed on the basis of the written submissions of the parties.
The Respondent was directed to file and serve a Submission and provide any other material it wished the Commission to have regard to by 31 January 2025. Mr Mitchell was directed to file a Response to the Submission by 4 February 2025.
On 3 February 2025 I received from the Respondent the following submission:
I am writing this as I believe that during the fair work conciliation process, it has been only myself out of the two parties that has made any effort to resolve any perceived issues around Callum’s former employment with LT Plumbing.
This was typical of how Callum conducted himself during his employment with LT Plumbing.
As this was Callum’s lodgement with fair work, I believe this demonstrates a good reason to not have this inconvenience to myself continue and the matter be closed.
We will in any event be guided by how the commission would like to procced and I wait for your response.
By 11 February 2025 there had been no material filed by Mr Mitchell, despite my Direction that he file a response to the Submission made by the Respondent by 4 February 2025.
Consideration
Section 587 of the Act provides:
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 32, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.
Frequently, this section of the Act is the basis upon which the Commission may dismiss applications in circumstances where a party fails to comply with the Directions of the Commission, such as through non-attendance[1]. The words “without limiting when the FWC may dismiss an application” in s 587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s 587(1)(a), (b) and (c).
Some of the principles guiding the exercise of the power under s 587 of the Act were usefully summarised by Easton DP in Bond v Carbridge Pty Ltd T/A Carbridge[2]. These include that the exercise of the power should be used with caution and is subject to the Commission acting judiciously and affording the Applicant procedural fairness (although without necessitating a hearing).
In this matter, I consider it apparent that Mr Mitchell did not properly participate in his application after he filed it and does not intend to do so. In particular, since the application was filed, he has only participated in the proceeding momentarily, after, having failed to attend the first conciliation arranged in relation to his application, he asked for a second one to be convened – only to not attend it. Otherwise, he has failed to attend conferences without explanation and failed to comply with the Directions of the Commission and has done nothing to prosecute his application.
The Respondent on the other hand has attended three conferences in the matter and will suffer ongoing prejudice should it be asked to continue to participate in the proceeding when Mr Mitchell is not.
I consider that Mr Mitchell has been provided with procedural fairness, having been provided with the submissions made by the Respondent, and has been given time to provide a response. He has not responded at all. At all times he has been made aware of the possibility his application may be dismissed for his failure to participate in it and failure to follow Directions.
Mr Mitchell’s application is dismissed, and an Order[3] will issue to that effect with this decision.
COMMISSIONER
Matter determined on the papers
[1] see for example Viavattene v Health Care Australia[2013] FWCFB 2532 [39]; Rebecca Tomas v Symbian Health[2011] FWA 5458 [57]; Brock Auguston v Castleross Construction Pty Ltd[2024] FWC 1460
[2] [2024] FWC 1302
[3] PR783853
Printed by authority of the Commonwealth Government Printer
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