Mr Grant Moulai v Offaly Civil Pty Ltd T/A Offaly Civil Engineering

[2020] FWC 557

[2020] FWC 557

FAIR WORK COMMISSION

DECISION

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

Mr Grant Moulai
v
Offaly Civil Pty Ltd T/A Offaly Civil Engineering
(U2019/7443)

COMMISSIONER BOOTH BRISBANE, 4 FEBRUARY 2020

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

[1] On 9 July 2019, Mr Grant Moulai (the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging he was unfairly dismissed from his employment with Offaly Civil Pty Ltd T/A Offaly Civil Engineering (the Respondent).

[2] The matter was listed for conciliation before a Fair Work Commission conciliator but was unable to be resolved.

[3] The matter was then allocated to my Chambers for dealing of the jurisdictional objection by the Respondent, that the Applicant had not met the minimum employment period required to make an unfair dismissal application pursuant to s.383(b) of the Act.

[4] A directions conference was conducted by telephone on 16 September 2019, further to which formal directions for filing of materials in relation to the jurisdictional objection were issued to the parties.

[5] On 30 September 2019, the Respondent sent correspondence to my Chambers to the effect that it withdrew its jurisdictional objection.

[6] Accordingly, a further directions conference was conducted by telephone on 18 November 2019, further to which directions were issued to the parties for filing of materials on the merits of the application and remedy sought.

[7] The Applicant was required to file materials by 4:00 pm, 20 December 2019.

[8] Correspondent from my Chambers was sent to the Applicant on 30 December 2019, seeking an urgent response from him regarding his failure to file materials within the timeframe stipulated.

[9] On 5 January 2020, my Chambers received correspondence from the Respondent, seeking an update regarding the Applicant’s failure to file.

[10] On 14 January 2020, my Chambers sent further correspondence to the Applicant, seeking reasons why his application should not be dismissed for failure to comply with Directions of the Commission. This correspondence was also sent to the Applicant’s physical address.

[11] On that same date, my Chambers received a response by email from the Applicant in the following terms:

“Please be advised as I now reside in Victoria and the hearing is to be held In Gympie Queensland I have no alternative but to no longer proceed with the above mentioned matter. 

I am not in a financial position to be able to obtain flights and accommodation to Gympie Queensland. 

Also the witnesses formerly employed by Offaly Civil that were to appear on my behalf also reside out of state.

If the hearing was to be held via conference call I would still be able to proceed with this matter.

Yours sincerely

Grant Moulai”.

[12] Amended directions were then issued to the parties, requiring the Applicant to file materials by 23 January 2020. This correspondence noted that no further extensions would be provided, and that if the Applicant failed to file, I would consider dismissing his application.

[13] The Applicant has not filed any materials in response to these directions to date, nor contacted Chambers to seek an extension for filing.

[14] 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.”

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

[16] 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

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. 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 not responding to various correspondence with the Commission and failing to file his material as directed by the Commission. 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.

[18] 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.

[19] 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. 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].