Mr Dion Rogers v Woolworths Group Limited T/A Primary Connect

[2023] FWC 1230

[2023] FWC 1230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Dion Rogers
v

Woolworths Group Limited T/A Primary Connect

(U2023/2126)

COMMISSIONER DURHAM BRISBANE, 25 MAY 2023

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

1. On 14 March 2023, Mr Dion Rogers (Mr Rogers/the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Woolworths Group Limited T/A Primary Connect (the Respondent).

1. The matter was listed for conciliation conference before a Commission staff conciliator on 17 April 2023. The conciliation did not take place as the Applicant could not be contacted and the matter was then allocated to me for consideration.

1. I listed the matter for a case management conference/directions hearing by telephone on 16 May 2023.

1. On 15 May 2023 at 2:11pm the day prior to the case management conference/directions hearing, my Associate sent the following email to the Applicant:

“Dear Mr Rogers,

I refer to the above matter and the case management conference/directions hearing listed by phone at 2:00pm (Qld time) Tuesday, 16 May 2023 (notice of listing attached).

Can the Applicant please confirm attendance and best contact details before close of business today, 15 May 2023.”

1. On 16 February 2023 at 8:31am, my Associate sent the following email to the Applicant:

“Dear Mr Rogers,

I refer to my previous email below and my voice mail left this morning.

Please confirm your attendance and best contact details by no later than 10:00am today, 16 May 2023 in preparation for the case management conference/directions hearing listing by phone at 2:00pm today (notice of listing attached).”

1. Throughout that day, my Associate attempted to contact Mr Rogers for the directions hearing multiple times, however the calls went unanswered.

1. At 3:15pm that same afternoon, my Associate sent the following correspondence to Mr Rogers:

“Dear Mr Rogers,

On 3 May 2023, the Commissioner issued a Notice of Listing in the above matter requiring you to attend a Directions Hearing by telephone for your application at 2:00pm on 16 May 2023.

You were required to confirm attendance and provide your best contact number by 10:00am on 15 May 2023, however Chambers did not receive this confirmation from you, despite following up multiple times.

Attempts were made to contact you on the number listed on your application. The number went straight to message bank on the numerous attempts to call you and you failed to appear for the Directions Hearing.

You have made no attempt to contact the chambers of Commissioner Durham to explain the reasons for not attending the Directions Hearing listed today.

The Commissioner directs you to provide your reason, in writing, for failing to attend the Directions Hearing by close of business, Tuesday, 23 May 2023. If no explanation is received from you, the Commissioner will give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.

Your response can be e-mailed to [email protected].”

1. To date, no correspondence or telephone contact has been received from Mr Rogers.

1. 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.”

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

1. I note 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]

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Rogers has failed to respond to various correspondence from chambers, and provide any reasonable explanation to the Commission regarding this failure to respond. Mr Rogers has shown no willingness to prosecute his case and has taken no steps to do so.

1. In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter without examining the merits where the Applicant has failed to prosecute their case.

1. In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order to that effect will issue with this decision.

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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