Mr Craig Jeffery v The Trustee for Valley Morris Trust

[2019] FWC 8543

[2019] FWC 8543

FAIR WORK COMMISSION

DECISION

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

Mr Craig Jeffery
v
The Trustee for Valley Morris Trust; The Trustee for Zen Catering Trust
(U2019/2254)

COMMISSIONER BOOTH BRISBANE, 18 DECEMBER 2019

Application for an unfair dismissal remedy – application dismissed under s.587.

[1] Mr Craig Jeffery (the Applicant) has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for remedy, alleging he was unfairly dismissed from his employment with The Trustee for Valley Morris Trust; The Trustee for Zen Catering Trust (the Respondent) on 8 February 2019.

[2] The matter was listed for a conciliation conference on 3 April 2019, however the Respondent advised it did not wish to participate and accordingly the conciliation conference was vacated.

[3] On 5 April 2019, the Unfair Dismissal Cases Management Team sent an email to the Respondent to advise that the matter would be listed for an Arbitration Conference/Hearing and requested it file a Form F3 response to the application by no later than 8 April 2019. The Respondent has not filed a Form F3 to date.

[4] A Notice of Listing was sent to the parties on 12 April 2019 advising of an Arbitration Conference/Hearing to be set down 3-5 June 2019. The Notice of Listing requested the parties to file any submissions and material in relation to the unfair dismissal application.

[5] A further Notice of Listing was sent to the parties on 9 May 2019 advising that the Arbitration Conference/Hearing was to be set down for 5 June 2019 only.

[6] The matter was allocated to my Chambers for further dealing on 17 May 2019.

[7] On 17 May 2019, my Chambers listed the matter for a telephone conference to be held on 22 May 2019. This conference proceeded as listed, further to which the parties were to engage in private discussions towards settlement of the matter.

[8] On 9 August 2019, my Associate sent an email to the parties requesting an update as to the status of the matter by close of business 12 August 2019. My Chambers did not receive a response from either party.

[9] On 20 September 2019, I instructed my Associate to send a further email to the parties requesting an update on the matter by 10am, 24 September 2019. This correspondence confirmed that should no response by received by this time, I would consider closing the file. My Chambers did not receive a response from either party.

[10] On 23 October 2019, correspondence was sent to the parties to the effect that I was now minded to dismiss the application. I directed the Applicant to provide reasons why the application should not be dismissed by close of business 28 October 2019. My Chambers did not receive a response from the Applicant.

[11] 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.”

[12] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[13] It has been long held by the Courts, Commissions and Tribunals 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 This is because 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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant had failed to respond to numerous attempts made by the Commission to contact him. Further to this, s.587 of the Act does not prescribe a limit on which the Commission may dismiss an application. In this case, the Applicant has demonstrated a persistent unwillingness to properly engage with the Commission by failing to respond to correspondence with the Commission in respect to his application. In addition, the Applicant has not provided an explanation to the Commission for his failure to comply with directions. The Applicant has therefore shown no willingness to prosecute his case.

[15] The Full Bench in L. Sayer v Melsteel Pty Ltd 3 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.

[16] In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss Applicant’s application for want of prosecution. An Order to this effect will issue accordingly.

COMMISSIONER

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 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].