Mr Lucas Storie-Stott v Tailored4Choice
[2024] FWC 3186
•19 NOVEMBER 2024
| [2024] FWC 3186 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Lucas Storie-Stott
v
Tailored4Choice
(U2024/7348)
| COMMISSIONER CONNOLLY | MELBOURNE, 19 NOVEMBER 2024 |
Application for an unfair dismissal remedy – application dismissed pursuant to s.587
On 25 June 2024, Mr Lucas Storie-Stott (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Tailored4Choice (the Respondent).
On 20 August 2024, the Respondent lodged a form F3 Employer Response to application for an Unfair Dismissal Remedy in response to the Applicant’s application. In its response, the Respondent raised the objection that the Applicant was not dismissed. The Respondent was requested to participate in the conciliation process despite the objection.
On 16 September 2024, a conciliation conference was scheduled before a Commission staff conciliator. The conciliation could not go ahead because the Applicant did not attend the conciliation conference. The Applicant could not be contacted at the time of conciliation and did not reply to request a further conciliation conference.
Subsequently, the matter was allocated to my Chambers on 20 September 2024 for determination.
On 3 October 2024, Directions were issued for the filing of submissions and evidence and the matter was listed for a Mention on 15 October 2024, and set down for a Hearing on 18 November 2024. Paragraph [14] of the Directions advised that ‘Compliance with these Directions is mandatory and a failure to comply is likely to disadvantage the party concerned.’
The Applicant did not attend the Mention at 2:00PM on 15 October 2024. By 2:00PM, my Chambers attempted to contact the Applicant on his mobile phone number that was provided in his Form F2 application. The Applicant was unreachable. The Applicant was also sent the following correspondence ahead of the Menion:
“Dear Mr Storie-Stott,
I refer to the matter above and the Mention listed before Commissioner Connolly at 2:00pm AEDT Tuesday, 15 October 2024.
I have attempted to contact your telephone number several times and have not been successful.
Please note that if you do not attend the Mention by 2:05pm AEDT, the Commissioner will proceed without you.”
The Mention was conducted without the Applicant. The Respondent was represented by Ms Laura Rasile (Solicitor, Irwell Law) and Mr Brian Lamond and Mr Dan Clancy.
On 15 October 2024, my Chambers sent the Applicant correspondence noting that he failed to attend the Mention and the previous conciliation conference and otherwise failed to provide any explanation as to why and did not comply with the Directions made on 3 October 2024. My Chambers advised the Applicant if he did not submit any reasons for his non-compliance and/or comply with the Directions by 4:00PM on Friday, 18 October 2024, the Hearing would be vacated and the necessary steps to dismiss the application per s.587 of the Fair Work Act 2009 would be taken.
The Applicant’s initial submissions were due to be filed to Chambers and served on the Respondent by 4:00PM on 18 October 2024. The Applicant did not file any submissions, nor did he send any correspondence to the Commission.
On 21 October 2024, the Respondent filed a Form F1 application to dismiss the Applicant’s unfair dismissal application per ss.399A(1)(a)–(b) and 587(1)(c) of the Fair Work Act 2009.
To this date, no communication has been received from the Applicant since 21 August 2024.
s.587 of the Act provides:
“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.”
It is well established that the three specific grounds for dismissal of an application under s.587(1) are not exhaustive and therefore do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative.[1] Dismissal of an application “for want of prosecution” is a particular ground for dismissal of an application that has been used in various decisions of the Commission, with reliance routinely placed on a broader discretion conferred by the introductory words of s.587(1) of the Act.[2]
In Raschilla v Ausino West Pty Ltd[3] (Ausino) the Full Bench emphasised that the Commission’s powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an Applicant’s right to have their substantive application heard and determined by the Commission.
In the present circumstances, the Applicant has clearly demonstrated an unwillingness to prosecute his case. The principle of ‘a fair go all round’ applies to both employers and employees. I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources responding to a claim that the Applicant initiated and appears to have had no intention of following through. The Applicant has had a fair opportunity to respond to the concerns of the Commission and has chosen not to on every occasion.
As noted above, s.587(1) does not limit when the Commission may dismiss an application. Mr Storie-Stott has, in effect, abandoned his application and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter. I am satisfied that I should exercise my discretion to dismiss Mr Storie-Stott’s application.
ORDER
The application lodged by Mr Lucas Storie-Stott pursuant to s.394 of the Act on 25 June 2024 is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.
COMMISSIONER
[1] Bosworth v Coles Supermarket Beechboro [2022] FWCFB 153 at [48].
[2] Ibid.
[3] [2017] FWCFB 5952.
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