Mr Darren Evans v Concrete Employment Services Pty Ltd
[2024] FWC 2025
•1 AUGUST 2024
| [2024] FWC 2025 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Darren Evans
v
Concrete Employment Services Pty Ltd
(U2024/6192)
| COMMISSIONER RIORDAN | BRISBANE, 1 AUGUST 2024 |
Application for an unfair dismissal remedy – application dismissed
On 30 May 2024, Mr Darren Evans (the Applicant) lodged an application pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act), being an application for an unfair dismissal remedy against Concrete Employment Services Pty Ltd (the Respondent).
The matter was listed for a Staff Conciliation on 2 July 2024. SMS reminders for the Staff Conciliation were issued by the Fair Work Commission (the Commission) on 1 July 2024.
The Applicant failed to attend the Staff Conciliation on 2 July 2024, accordingly, it did not proceed.
The matter was allocated to my Chambers for further dealing on 9 July 2024.
On 10 July 2024, my Chambers issued a Notice of Listing to the parties for a Conference/Directions to be conducted at 10:00 AM NT time on 19 July 2024. This Notice of Listing requested that both parties confirm their appearances in writing to my Chambers ahead of the listing date.
My Chambers received the Respondent’s confirmed appearance, as requested, however, no correspondence was received from the Applicant.
On 19 July 2024, ahead of the Conference, my Chambers wrote to the parties advising that the Conference would commence 10-15 minutes late. This correspondence also provided:
“…Mr Evans, can you please confirm you are available and will be in attendance on your mobile number? Chambers has not received a confirmed appearance from you.”
My Chambers unsuccessfully attempted to dial the Applicant into the Conference on two occasions. The following correspondence was also sent to the Applicant at 10:19 AM NT time:
“Dear Mr Evans,
Further to the below, I note that Chambers has tried twice to connect you into the conference line and it has gone to voice message.
Please urgently confirm via reply email that you are available to attend today’s conference.”
A further attempt to dial the Applicant into the Conference line at 10:30 AM NT time was also unsuccessful.
The Applicant failed to contact my Chambers, by telephone or in writing, and failed to join the Conference line as directed on the Notice of Listing. The Conference was accordingly vacated.
On 19 July 2024, following vacating of the Conference, a ‘non-attendance’ letter was issued to the Applicant granting him 7 days to provide an explanation for his failure to attend the Conference of 19 July 2024.
To date, no written response or return phone call has been received from the Applicant.
Relevant Legislation
Section 587 of the Act provides:
“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.”
It has been held 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 relief from a beneficial statutory provision.[2]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various attempts by my Chambers to contact him and has failed to attend a Staff Conciliation and the listed Conference before me. The Applicant has shown no willingness to prosecute his case and has taken no steps to do so.
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.
After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Mr Evans’s application for failure to prosecute his case.
Accordingly, the application is dismissed pursuant to section 587 of the Act.
I so Order.
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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