Mr Kane Pyers v The Butcher Shoppe

[2020] FWC 2541

[2020] FWC 2541

FAIR WORK COMMISSION

DECISION

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

Mr Kane Pyers
v
The Butcher Shoppe
(U2019/14099)

COMMISSIONER BOOTH BRISBANE, 15 MAY 2020

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

[1] On 16 December 2019, Mr Kane Pyers (the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy, alleging he was unfairly dismissed from his employment with The Butcher Shoppe (the Respondent).

[2] The matter was listed for conciliation before a Fair Work Conciliator on 24 January 2020. The conciliation did not proceed because the Respondent was not available.

[3] The matter was then allocated to my Chambers on 13 February 2020. On 14 February 2020, correspondence was sent from my Chambers to the parties listing to matter for a directions conference on 26 February 2020.

[4] On 18 February 2020, the Applicant’s girlfriend, Ms Chelsy Taylor, sent an email to Chambers (without copying in the Respondent) requesting to reschedule the conference due to the following:

“Kane is currently studying at TAFE and he is there between 8am - 3pm he is available anytime after 3pm as this is when he finishes or he is available Thursdays and Fridays.

He confirmed with his TAFE teacher that he is unable to miss anytime in his classes for the next 3 weeks unfortunately.”

[5] After seeking the views of the Respondent, the matter was relisted for directions conference on 27 February 2020.

[6] A directions conference was conducted by telephone on 27 February 2020, further to which the parties commenced negotiation discussions to attempt to resolve the matter.

[7] On 4 March 2020, Ms Taylor sent correspondence to my Chambers, in which she advised that the parties were unable to resolve the matter and that the Applicant sought assistance from the Commission.

[8] Directions were issued on 6 March 2020 requiring the Applicant and the Respondent to file material. Relevantly, the Directions required the Applicant to file submissions in support of his unfair dismissal and submissions outlining the remedy he was seeking by 26 March 2020. The Directions also required that any witness statements the Applicant intends to call at the Hearing be filed. Sections 387, 390, 393 and 393 were set out in the Directions, and an information sheet, that included a link to templates to assist the Applicant prepare his submissions, were appended to the Direction.

[9] The Directions stated under a heading “6. NON COMPLIANCE WITH THESE DIRECTIONS” that the Commission would not accept material that was filed after the expiry of a time specified in the Directions unless an extension has been sought and granted by the Commission prior to the expiry of the specified timeframe. Directions further stated that requests for an extension of time for compliance must be made to the Commission in writing and specify the grounds upon which an extension is sought and that any relevant documents such as medical certificates should also be provided. The matter was listed for Hearing on 21 May 2020.

[10] The Applicant did not comply with the Directions and did not file his material by 26 March 2020. The Applicant also did not seek an extension of time to file his material as required by the Directions.

[11] On 20 April 2020, at my request, my Associate contacted the Applicant regarding his failure to comply with the Directions. Ms Taylor answered the call and advised my Associate that the Applicant had been busy with and had not gotten around to filing the materials and that he seeks to proceed with the matter. My Associate advised Ms Taylor that written correspondence would be sent to the parties, seeking a written reply as to why the Applicant failed to comply with Directions.

[12] On 20 April 2020 and following the telephone conversation with Ms Taylor, correspondence from my Chambers was sent to parties, noting that the Applicant had failed to comply with the Directions and his intention to proceed with the matter. The Applicant was given an opportunity to provide an urgent response in writing, providing reasons for his failure to file material by the directed date or to seek an extension in a timely matter. The Applicant was also required to indicate a date by which he will seek to file his material.

[13] As the Applicant did not respond, a further email was sent from my Chambers on 27 April 2020. The Applicant was put on notice that I was giving consideration as to whether his file should be dismissed. The Applicant was directed to provide any reason why the application should not be dismissed by close of business on 1 May 2020.

[14] To date, the Applicant has not responded to correspondence sent from my Chambers, nor contacted my Chambers to provide reasons for his failure to comply with Directions of the Commission or reasons as to why his application should not be dismissed.

[15] 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.”

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

[17] 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

[18] 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 failed to file any material in the matter beyond his initial Form F2. The Applicant has further failed to contact my Chambers at any time to provide an explanation to the Commission for his failure to comply with directions. The Applicant has therefore shown no willingness to prosecute his case.

[19] 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.

[20] 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].