Mr Paul Lowden v Emerlite Electrical Services

[2020] FWC 2686

[2020] FWC 2686

FAIR WORK COMMISSION

DECISION

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

Mr Paul Lowden
v
Emerlite Electrical Services
(U2020/79)

COMMISSIONER BOOTH BRISBANE, 22 MAY 2020

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

[1] On 6 January 2020, Mr Paul Lowden (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 Emerlite Electrical Services (the Respondent).

[2] The Respondent objected to the application on the basis that the Applicant had not been dismissed in accordance with s.386 of the Act.

[3] The matter was listed for conciliation before a Fair Work Conciliator at 9:15 am on 17 February 2020. The conciliation did not proceed as the Applicant was unavailable at the listed time as he was at work. A second conciliation was listed before a Fair Work Conciliator at 9:15 am on 25 March 2020. The Conciliator attempted to contact the Applicant on multiple occasions but was unable to contact him on the number he had provided. The conciliation did not proceed because the Applicant was not available.

[4] The matter was then allocated to my Chambers on 27 March 2020. Directions were issued on 6 April 2020, requiring the Applicant and the Respondent to file materials.

[5] Relevantly, the Directions issued on 6 April 2020 required the Applicant to file submissions in support of his unfair dismissal application, addressing the Respondent’s jurisdictional objections on the grounds that he was not dismissed. 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.

[6] 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.

[7] The Applicant did not comply with the Directions and did not file his material by 23 April 2020 as required. The Applicant also did not seek an extension of time to file his material as required by the Directions.

[8] On 24 April 2020, the Respondent sent correspondence to my Chambers (without the Applicant copied in) requesting that the matter be dismissed on the grounds that the Applicant has shown a lack of interest in pursuing his matter. The Respondent also raised a jurisdictional objection that it was a small business, employing less than 15 employees, and that the Applicant had not completed the minimum period of employment as required by s.382 of the Act.

[9] On 24 April 2020 and at my request, my Associate sent the correspondence to the parties, noting that the Applicant had failed to attend the two conciliations conducted by a Fair Work Commission Conciliator and failed to comply with the Directions issued by my Chambers on 6 April 2020. As set out in the email, in light of the current events and the Covid-19 epidemic, the Applicant was given an opportunity to provide an explanation for his delay in filing and a further period to file his material. This material was to be filed by close of business 1 May 2020.

[10] As no material was received from the Applicant by 1 May, the Respondent again wrote to my Chambers on 6 May, seeking that the matter be dismissed.

[11] 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 filed his material.

[12] 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.”

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

[14] 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

[15] 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.

[16] 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.

[17] 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

Printed by authority of the Commonwealth Government Printer

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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].