Mr Jaymes Thomas Lowe v SC Services Pty Ltd

[2023] FWC 519

[2023] FWC 519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Jaymes Thomas Lowe
v

SC Services Pty Ltd

(C2022/8401)

COMMISSIONER WILSON MELBOURNE, 2 MARCH 2023

Application to deal with contraventions involving dismissal – application dismissed for want of prosecution

1. On 19 December 2022, Mr Lowe filed an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act).

1. In his Form F8 – General protections application involving dismissal, Mr Lowe advised that he was notified of his dismissal from his employer SC Services Pty Ltd on 12 December 2022, and that it took effect on the same day.

1. On 23 December 2022 a Notice of Listing was sent to the parties advising the matter was listed for conciliation conference on 27 January 2023.

1. On 3 January 2023 the employer provided a Form F8A – Response to general protections application stating it wished to raise a jurisdictional objection to the s.365 application on the ground that he was not covered by a Modern Award. I note that, unlike applications for remedy for unfair dismissal made under s.394 of the Act, applications under s.365 of the Act are not subject to jurisdictional objection on this ground.

1. On 6 January 2023, correspondence was sent from the Commission to the parties in response to correspondence from the Respondent stating they did not think the conciliation would be required. The correspondence from the Commission stated to the parties “the Respondent and the Applicant must both attend the conciliation on Friday 27 January at 9:15am” and requested “At your earliest convenience, please provide us with the full names and best contacts number/s of all people attending the conciliation so that the conciliator can call you on the day.” [emphasis in original]

1. On 10 January 2023, contact details for the purposes of conciliation were provided by the Respondent.

1. On 20 January 2023, the Commission sent correspondence to the Applicant requesting contact details be confirmed by 23 January 2023.

1. On 23 January 2023 the Commission made two calls to the number provided by the Applicant. The line was disconnected, and a message could not be left. A letter was also sent to the Applicant providing the details of the scheduled conciliation and requesting contact details be confirmed as soon as possible.

1. On 27 January 2023 at the time of the scheduled conciliation five calls were made to the Applicant. The line appeared disconnected and there was no ability to leave a voice mail.

1. On 30 January 2023, a further letter was sent from the Commission to the Applicant advising of his non-attendance and requesting reasons for the non-attendance by provided by not later than 1 February 2023.

1. The matter was subsequently assigned to me. After consulting the history of the matter, on 2 February 2023 I caused the following correspondence to be sent from my Chambers to the Applicant,

“The above matter has been assigned to Commissioner Wilson. He is contemplating dismissing the application due to non-compliance by the Applicant and an apparent unwillingness to prosecute the application, and will move to do so unless urgent contact is made by the Applicant, by not later than close of business 22 February 2023, to advise his application is continuing.”

1. No response to the above correspondence was received. On 1 March 2023 one further call was made from the Chambers to the number provided by the Applicant. The number remained disconnected with no ability to leave a voicemail.

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. The words ‘without limiting when the FWC may dismiss an application’ in s.587(1) of the Act make clear that the jurisdiction of the Commission to dismiss an application is not restricted to the circumstances set out in ss.587(1)(a), (b) and (c).

1. The Full Bench in Sayer v Melsteel Pty Ltd[1] 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.

1. In Viavattene v Health Care Australia[2] the Full Bench stated at [39]:

“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”

1. Mr Lowe has failed to respond to all the attempts made by the Commission to contact him following the lodgement of his application. There is no reasonable explanation as to why Mr Lowe did not respond to the emails sent to him or return the phone calls made to him. The emails were sent to the email address nominated on his application and the calls made to a telephone number nominated on his application. Mr Lowe has shown no willingness to prosecute his case and has provided no explanation for his non-attendance at the conciliation conference. In these circumstances, I am satisfied that Mr Lowe has failed to prosecute his application. In accordance with s.587 of the Act, the application is dismissed for want of prosecution. An order giving effect to this decision will be issued today.

COMMISSIONER

[1] [2011] FWAFB 7498 at [19].

[2] [2013] FWCFB 2532.

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