Mr John Garbett v Surreal Signs Pty Ltd Summary

[2024] FWC 3131

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr John Garbett
v

Surreal Signs Pty Ltd

(U2024/10243)

DEPUTY PRESIDENT EASTON

SYDNEY, 13 NOVEMBER 2024

Application for an unfair dismissal remedy – Lack of prosecution – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

On 2 September 2024, Mr John Garbett filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A conciliation conference was scheduled on 30 September 2024 however Mr Garbett did not attend.

On 30 September 2024, correspondence was sent to Mr Garbett in relation to his non-attendance and was asked to email any request to proceed with a further conciliation within 2 working days.

To date, Mr Garbett has not responded to any of the Commission’s attempts to contact him.

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.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1).

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

Mr Garbett has been on notice of the likely consequences of his application if he does not respond.

In the circumstances I have decided to dismiss Mr Garbett’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR781212).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Mr John Garbett versus Surreal Signs Pty Ltd involved an application for an unfair dismissal remedy filed by Mr Garbett under section 394 of the Fair Work Act 2009. The Fair Work Commission was tasked with deciding whether the dismissal of Mr Garbett by Surreal Signs Pty Ltd was unfair. Mr Garbett had not attended the scheduled conciliation conference and had failed to respond to multiple attempts by the Commission to contact him regarding his non-attendance.

The central legal issue before the Commission was whether Mr Garbett's application for unfair dismissal had any reasonable prospects of success. The Fair Work Act 2009, specifically section 587, provided the legal framework for the Commission's decision. Section 587(1)(c) allowed the Commission to dismiss an application if it had no reasonable prospects of success. The Commission was also empowered to dismiss an application on its own initiative if it appeared that the applicant had ceased to pursue the proceedings.

In deciding to dismiss the application, the Deputy President cited the absence of any response from Mr Garbett to the Commission's communications as evidence that he had abandoned his application. This lack of prosecution indicated that the application had no reasonable prospects of success. The Deputy President further noted that the Act's provision for dismissal on the Commission's own initiative was not restricted to the specific circumstances outlined in section 587(1). Therefore, the Commission was justified in dismissing the application without further action from Mr Garbett.

Mr John Garbett v Surreal Signs Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established