Mr Manuel Yanez v Decorative Painting Services Pty Ltd T/A All Terrain Spares

[2020] FWC 5168

[2020] FWC 5168

FAIR WORK COMMISSION

DECISION

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

Mr Manuel Yanez
v
Decorative Painting Services Pty Ltd T/A All Terrain Spares
(U2020/4189)

COMMISSIONER BOOTH BRISBANE, 28 SEPTEMBER 2020

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

[1] On 6 April 2020, Mr Manuel Yanez (the Applicant) applied to the Fair Work 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 Decorative Painting Services Pty Ltd T/A All Terrain Spares (the Respondent). The Applicant stated he was employed by the Respondent from 17 September 2018 until his dismissal on 17 March 2020. The Applicant was dismissed for allegedly verbally abusing a customer and Mr Martin Sullivan, his employer.

[2] The matter was listed for conciliation conference before a Fair Work Commission staff conciliator on 12 May 2020 and was unable to be resolved.

[3] The matter was referred to my Chambers for determination. I listed the matter for a Conference on 22 June 2020, which was later rescheduled to 24 June 2020. Subsequent to the conference, I issued Directions for filing of material on 24 June 2020. The Applicant was directed to file materials in support of his substantive application as well as any witness statements or documentary material by no later than 15 July 2020, and the Respondent to file their material on 5 August 2020. The Applicant was given an opportunity to file material in reply by 12 August 2020.

[4] On 13 July 2020, the Applicant sent an email to Chambers and requested an extension of one week for filing of his material, noting he was attempting to obtain legal advice but was having difficulties due to the effects of COVID-19. This was not opposed by the Respondent. The timeframes outlined above were extended by one week, with the Applicant to file his material by 22 July. The Respondent was required to file material by 12 August, and any reply from the Applicant was to be filed by 19 August 2020.

[5] The Applicant did not file any material by 22 July 2020. My Associate wrote to the parties on 3 September 2020, noting that no material had been received from the parties as required. The parties were also requested to advise whether they intended to file materials, and whether the Applicant intended to pursue his application, by no later than close of business on 3 September 2020.

[6] No contact was made by the Applicant. My Associate attempted to contact the Applicant by telephone on 18 September 2020 and left a voicemail, requesting the Applicant to contact my Chambers by 21 September 2020 if he wished to pursue the application.

[7] I directed my Associate to send email correspondence to the Applicant noting his failure to comply with the Directions and his failure to respond to the email correspondence on 3 September 2020. The correspondence noted that in light of the Applicant’s failure to provide any response to correspondence from Chambers on 3 September 2020, I was now considering dismissing the application. The Applicant was invited to provide any reasons why the application should not be dismissed, in writing to Chambers, by close of business 21 September 2020.

[8] No response has been received from the Applicant to date. The Applicant has not contacted Chambers since his email correspondence of 13 July 2020. The Applicant has not filed any material in relation to his application.

[9] 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.”

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

[11] 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 as 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

[12] I note that the power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Yanez has failed to respond to attempts to contact him and direct correspondence from Chambers noting that should he not do so, his application would be at risk of being dismissed. The Applicant has failed to file any material in the matter beyond his initial Form F2, despite requesting an adjournment to do so which was granted. The Applicant has failed to provide any reasonable explanation to the Commission for his failure to comply with directions and has shown no willingness to prosecute his case and taken no steps to do so beyond his request for an extension for filing of material.

[13] In L. Sayer v Melsteel Pty Ltd, 3 the Full Bench held that s.587(1) of the Act provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[14] 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].