Mr Luke Wiggins v Aminjarrinja Enterprises Aboriginal Corporation
[2024] FWC 1115
•30 APRIL 2024
| [2024] FWC 1115 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Luke Wiggins
v
Aminjarrinja Enterprises Aboriginal Corporation
(C2024/1944)
| COMMISSIONER RIORDAN | SYDNEY, 30 APRIL 2024 |
Application to deal with contraventions involving dismissal
On 26 March 2024, Mr Luke Wiggins (the Applicant) lodged an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the FW Act), being an application to deal with contraventions involving dismissal. The Applicant stated that he was dismissed by Aminjarrinja Enterprises Aboriginal Corporation (the Respondent) on 17 March 2024.
In its Form F8A response to the Applicant’s application, the Respondent raised a jurisdictional objection on the ground that the Applicant was not dismissed, rather, the Applicant resigned from his employment with the Respondent.
The matter was allocated to my Chambers on 15 April 2024 for the purposes of determining the ‘no dismissal’ jurisdictional issue.
On that same date, my Chambers issued a notice of listing for a Directions Conference to be conducted at 9:30am AEST on 22 April 2024. The notice of listing requested that both parties confirm their appearances in writing to my Chambers ahead of the listing date.
On 16 April 2024, the Applicant’s representative, Unfair Dismissal Experts, filed a Form F54 – Notice that lawyer or paid aged has ceased to act for a person.
Further to receiving the Form F54, my Chambers sent correspondence to the Respondent and Applicant parties, relevantly stating:-
“…Chambers confirms that this Form F54 has now been processed and the Applicant’s representative has been removed from the file.
The Respondent’s representative is copied here for service.
Regarding Monday’s Conference (notice of listing also attached for reference), Chambers will await the appearances of the Applicant, the Respondent and the Respondent’s representative.
Noting the below and attached, no further correspondence will be copied to Unfair Dismissal Experts regarding this matter.”
The Respondent’s representative provided the Respondent’s appearances for the purposes of the Directions Conference as requested. The Respondent’s representative also sent correspondence to the Applicant, copied to my Chambers, stating:-
“Dear Mr Wiggins,
I am writing to let you know we have supplied mobile numbers for the Fair Work Commission to use for the up-coming Directions Hearing via telephone on Monday. I did not include you in that email as they were personal numbers.
However, if you wish to discuss this matter with me as legal representative for Aminjarrinja Enterprises Aboriginal Corporation, please do not hesitate to contact me on [redacted] or via this email…”
At 8:15am AEST on 22 April 2024, my Associate wrote to the Applicant seeking his appearance for the Directions Conference scheduled for 9:30am AEST. No response was received from the Applicant.
The Respondent parties dialled into the Directions Conference line as required, however, the Applicant failed to attend. My Chambers attempted to contact the Applicant at 9:30am AEST, 9:35am AEST and 9:45am AEST. These attempted calls went to the Applicant’s voice mail and voice messages were left on each occasion.
As all attempts to dial in the Applicant were unsuccessful, the Directions Conference was adjourned.
A ‘non-attendance’ letter was issued to the Applicant, granting him 7 days to provide an explanation for his failure to attend.
To date, no correspondence or return calls have been received from the Applicant to explain his failure to attend the Directions Conference or otherwise seek a relisting of the matter.
Relevant Legislation
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.
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 has been held 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] 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]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. In failing to attend a formally listed Directions Conference, and failing to respond to correspondence from my Chambers to explain his failure to attend, the Applicant has shown no willingness to prosecute his case and taken no steps to do so.
In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench 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.
After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Mr Wiggins’s application for failure to prosecute his case.
Accordingly, the application is dismissed pursuant to section 587 of the FW Act.
I so Order.
COMMISSIONER
[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].
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