Mr Joseph (Joe) Jackson v Dimitrios Kanakis T/A Dasnays Transport & Warehousing

[2014] FWC 6290

[2014] FWC 6290

FAIR WORK COMMISSION

DECISION

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

Mr Joseph (Joe) Jackson
v
Dimitrios Kanakis T/A Dasnays Transport & Warehousing
(U2013/3672)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 11 SEPTEMBER 2014

Application for relief from unfair dismissal - application dismissed.

[1] This matter fell into abeyance following correspondence of 11 April 2014 in relation to whether the parties had met for discussions with a view to resolving the matter. Further requests for clarification as to the Applicant’s intentions have not met with a response by the specified due date.

[2] In light of the Applicant’s non-responsiveness to these requests, I have determined to dismiss the application for want of prosecution pursuant to s.587 of the Fair Work Act 2009, which 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.

[3] The power to dismiss an application, of course, should only be used cautiously (though there is some commentary that suggests it should also only be used ‘sparingly’, which appears to be more a measure of frequency or economy than a matter of caution - see [2013] FWC 7080 at 39).

[4] Section 587 of the Act, I note, does not limit the grounds on which, the Commission can under its own motion, dismiss an application.

[5] In this instance, the Applicant has not indicated any wish to continue to pursue the application he has agitated, despite the Commission’s approaches.

[6] In my view, s.587 of the Act, by way of its language affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. I add that the Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33).

[7] In the Full Bench decision in Sayer v Melsteel[2011] FWAFB 7498,the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed toprosecute their case. The Full Bench noted (relevantly):

When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent's case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent's case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner's decision is consistent with that approach. 1

[8] The Full Bench in Viavattene v Health Care Australia[2013] FWCFB 2532 commented on the circumstances where an applicant evinces “an unwillingness to participate in proceedings”, and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:

[...] 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). 2

[9] I exercise my discretion in this regard in the knowledge that the Respondent’s materials lodged indicate, even if at the prima facie level, a defence against the claims as made.

SENIOR DEPUTY PRESIDENT

 1   Sayer v Melsteel[2011] FWAFB 7498 at PNS16-17.

 2   Viavattene v Health Care Australia[2013] FWCFB 2532 at PN39.

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