Mr Caz Beckett v Heritage Bar & Grill Pty Ltd T/A Heritage Bar

[2015] FWC 6297

[2015] FWC 6297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Caz Beckett
v
Heritage Bar & Grill Pty Ltd T/A Heritage Bar
(U2015/6567)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 11 SEPTEMBER 2015

Application for relief from unfair dismissal - application dismissed - s.587.

[1] The Applicant in this matter, Mr Caz Beckett (“the Applicant”) lodged an application under s.394 of the Fair Work Act 2009 (“the Act”) on 21 July 2015. By that application the Applicant was seeking an unfair dismissal remedy arising from his dismissal by Heritage Bar & Grill Pty Ltd T/A Heritage Bar (“the employer”).

[2] A conciliation conference before a Fair Work Commission staff conciliator was listed for 10 August 2015. The conciliation did not proceed as the Applicant was not able to be contacted at the listed time. The Applicant did not respond to the correspondence sent by the conciliator to the Applicant following the failure to attend, therefore the matter was referred for arbitration.

[3] On 2 September 2015 I wrote to the Applicant (via his email address) in the following terms:

This matter has been allocated to Senior Deputy President Richards. His Honour notes that you did not attend the conciliation conference listed for 10 August 2015, and that the Commission has not received any correspondence from you since lodging your application on 21 July 2015.

His Honour requests that you confirm whether you seek to press this application by cob Wednesday 9 September 2015. If no correspondence or other communication is received by that time which confirms your intention to press the application, the application by you will be dismissed in accordance with section 587 of the Fair Work Act.

587 Dismissing applications
[section 587 reproduced]

[4] No response to this correspondence has been received by the date of this decision.

[5] In light of the Applicant’s failure to respond, I have determined to dismiss the application for want of prosecution pursuant to s.587 of the Act, which 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.

[6] The power to dismiss an application, of course, should only be used cautiously (though there is some commentary that goes further and suggests it should also only be used ‘sparingly’, which is a different notion altogether- see [2013] FWC 7080 at 39).

[7] In this instance, the Applicant has not evinced any effort to pursue the application he has agitated, despite the Commission’s approaches.

[8] Section 587 of the Act, by way of its language affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33).

[9] In the Full Bench decision in Sayer v Melsteel[2011] FWAFB 7498,the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed toprosecute their case. The Full Bench noted (relevantly)(at [16]-[17]):

When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent's case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent's case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner's decision is consistent with that approach.

[10] In the circumstances now before me, the employer has provided a response to the Applicant’s claims by way of its Form F3. The employer’s position is that the Applicant was not dismissed, but voluntarily abandoned the workplace after a verbal altercation with the employer. The employer, on the face of its claims, has “a defence of substance” against the claims, or at least “a defence to the action”.

[11] The Full Bench in Viavattene v Health Care Australia[2013] FWCFB 2532 (at [39]) commented on the circumstances where an applicant evinces “an unwillingness to participate in proceedings”, and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:

[...] There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).

Conclusion

[12] I exercise my discretion in this regard in the knowledge that the employer’s materials lodged indicate, even if at the prima facie level, a defence against the claims as made. The Applicant has failed to prosecute his claim despite being afforded opportunity to do so. I dismiss the application for those reasons.

SENIOR DEPUTY PRESIDENT

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