Mr Nathan Pryor v Real Community Services T/A Real Community Services

[2020] FWC 5517

[2020] FWC 5517

FAIR WORK COMMISSION

DECISION

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

Mr Nathan Pryor
v
Real Community Services T/A Real Community Services
(U2020/8934)

COMMISSIONER SIMPSON BRISBANE, 16 OCTOBER 2020

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

[1] On 30 June 2020, Mr Nathan Pryor (the Applicant) applied to 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 Real Community Services (the Respondent).

[2] The Applicant stated he was employed by the Respondent from 3 October 2019 until his dismissal on 29 June 2020.

[3] There was a significant delay between filing of the application and service on the Respondent resulting from a delay in the Applicant making payment of the application lodgement fee. The Client Services branch of the Commission attempted to contact Mr Pryor on 30 June 2020 to take payment of the lodgement fee but was unsuccessful and a voice mail was left and email correspondence sent advising Mr Pryor he was required to make payment of the lodgement fee. Mr Pryor was contacted again 16 July 2020 and lodged a waiver of application fee.

[4] The matter was listed for conciliation conference before a Fair Work Commission staff conciliator on 18 August 2020. Prior to the conciliation conference, the Respondent filed a Form F3 – Employer’s Response objecting to the application on the grounds that Mr Pryor had not been employed for the minimum employment period of 6 months. The Respondent asserted Mr Pryor was employed from 6 January 2020 and his employment terminated due to abandonment of employment on 29 June 2020, a period of less than six months. The Respondent sought to have the listed conciliation vacated and the jurisdictional objection heard in the first instance.

[5] The matter was allocated to me for consideration on 2 September 2020. I listed the matter for an initial Directions Hearing by telephone on 16 September 2020. The Applicant did not confirm his attendance at the Directions Conference as directed and did not attend the Directions Conference. My associate attempted to contact the Applicant by telephone on 16 September 2020 but was unsuccessful and a voicemail was left for his urgent attention.

[6] That same day, I wrote to the Applicant requesting him to provide reasons in writing for not participating in the Directions Conference by close of business 23 September 2020, and giving notice that if the Applicant did not provide an explanation of his failure to attend, I may give consideration to dismissing the application for want of prosecution under s.587 of the Act.

[7] I further directed the Applicant to provide submissions in response to the Respondent’s jurisdictional objection that the Applicant’s employment did not meet the minimum employment period. I directed that any submissions should be made by close of business 23 September 2020.

[8] The Applicant did not provide reasons for his failure to attend or submissions in response by 23 September 2020. The Applicant has not contacted Chambers at any time or provided any explanation for his failure to comply with my directions.

[9] No further correspondence or telephone contact has been received from the Applicant to date.

[10] 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.”

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

[12] I note 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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Pryor has failed to respond to various correspondence from Chambers, and has failed to file any material in the matter beyond his initial Form F2. There was a significant delay in making application for a waiver of fee for filing of his application despite numerous attempts to contact Mr Pryor. Mr Pryor has failed to provide any reasonable explanation to the Commission for his failure to comply with directions. Mr Pryor has shown no willingness to prosecute his case and taken no steps to do so.

[14] 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.

[15] 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.

[16] I Order 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].