Mr Craig Martin Goold v

[2022] FWC 2965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Craig Martin Goold
v

Champion Floats

(U2022/7932)

COMMISSIONER YILMAZ

MELBOURNE, 9 NOVEMBER 2022

Application for an unfair dismissal remedy – matter dismissed under s.587 at the Commission’s initiative.

On 28 July 2022, Mr Craig Martin Goold (the Applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

In his Form F2 – Unfair Dismissal Application (Form F2) the Applicant stated he was notified of the termination on 8 July 2022 and that the dismissal took effect on 9 July 2022. However, in its Form F3 the Respondent states that the Applicant was notified of the dismissal on 7 July 2022, with the dismissal taking effect on 8 July 2022. Given that the Form F2 was filed with the Commission on 28 July 2022, the application was made either 19 or 20 days after the dismissal took effect and therefore, was made within the time limit prescribed in the Act.

A conference before a staff conciliator was initially listed for 1 September 2022 but could not take place due to conciliator unavailability. The conciliation was then relisted for 4 October 2022 but could not proceed because neither party could be contacted on the day.

On 4 October 2022 the Commission sent correspondence to the parties to reschedule the conciliation conference. The parties were advised that absent a response with two working days, the matter would be referred to a Commission member for arbitration. The parties did not respond to the invitation to reschedule the conference and the application was subsequently allocated to me.

The matter was then listed for a Mention/Directions hearing scheduled for 14 October 2022 which did not take place despite several attempts to telephone the parties. A voicemail message was left with the Applicant requesting his urgent attendance and my chambers emailed the parties advising the Applicant that further failure to comply with Commission directions may result in the matter being listed for a non-compliance hearing, dismissed or determined on the materials before the Commission. A second email was issued to the parties attaching directions for the filing of materials.

On 17 October 2022 my chambers attempted to contact the Applicant and a voicemail message was left requesting that he contact chambers to confirm receipt of the directions. On 18 October 2022 my chambers sent an SMS message to the Applicant requesting that he telephone chambers as soon as possible. No response was received from the Applicant.

On 7 November 2022 my chambers emailed the Applicant advising that he had failed to comply with the filing dates set out in the directions issued on 14 October 2022. The matter was listed for a non-compliance hearing scheduled for 8 November 2022.

On the day of the non-compliance hearing the Respondent was present and the Applicant could not be contacted. My chambers attempted to telephone the Applicant and a voicemail message was left requesting his urgent attendance. No response was received.

To date, the Applicant has not responded to any of the correspondence sent to him by my chambers.

The Legislation

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.”

Consideration and Conclusion

At the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).

I have decided to dismiss the Application for the reason that numerous attempts have been made to engage with the Applicant and no response to date has been received by my chambers. I am satisfied that through those attempts to contact him, the Applicant was on notice of the risk that failure to contact the Commission may result in his matter being dismissed. Given the Applicant’s disengagement with the process I am satisfied that the matter should be dismissed on the basis that it has no reasonable prospect of success.

On this basis, the application is dismissed pursuant to s.587(1)(c) of the Act.

An order[1] to that effect will be issued with this decision.

COMMISSIONER

[1] PR747738.

Printed by authority of the Commonwealth Government Printer

The case involved Mr Craig Martin Goold, who filed an application with the Fair Work Commission (FWC) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009. He claimed to have been dismissed by Champion Floats on 9 July 2022. However, Champion Floats stated that the dismissal was effective from 8 July 2022. The application was filed either 19 or 20 days after the dismissal took effect, thus within the time limit prescribed by the Act. Despite several attempts to schedule a conference before a staff conciliator, and subsequent attempts to reschedule the conference, both parties failed to respond to the Commission's correspondence, leading to the application being referred to a Commission member for arbitration. The Applicant did not comply with the Commission's directions or respond to any correspondence, resulting in the application being dismissed under s.587 of the Act.

The legal issue that the FWC had to decide was whether the Applicant's failure to engage with the Commission and respond to correspondence warranted dismissal of his application for unfair dismissal remedy under s.394 of the Act. Given the Applicant's disengagement with the process, the Commissioner was satisfied that the matter should be dismissed on the basis that it had no reasonable prospect of success. The Commissioner also noted that the FWC has jurisdiction to dismiss applications on grounds not contained in ss. 587(1) (a), (b) and (c) of the Act.

The Commissioner concluded that the application should be dismissed on the basis that it had no reasonable prospect of success due to the Applicant's disengagement with the process. The Commissioner noted that numerous attempts had been made to engage with the Applicant and no response had been received. The Commissioner was satisfied that the Applicant was on notice of the risk that failure to contact the Commission may result in his matter being dismissed. The application was dismissed pursuant to s.587(1)(c) of the Act, and an order to that effect will be issued with this decision.

This case highlights the importance of engagement with the FWC process, and the consequences of failing to respond to the Commission's correspondence. The Commissioner's decision demonstrates that the FWC has the power to dismiss applications on grounds not contained in ss. 587(1) (a), (b) and (c) of the Act, and that the FWC will not hesitate to do so if it is satisfied that the application has no reasonable prospect of success.

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