Mr Paul Toogood v
[2022] FWC 2769
•14 OCTOBER 2022
| [2022] FWC 2769 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Paul Toogood
v
PSD Plumbing Pty Ltd ATF Dinnage Family Trust
(U2022/7796)
| COMMISSIONER YILMAZ | MELBOURNE, 14 OCTOBER 2022 |
Application for an unfair dismissal remedy – matter dismissed under s.587 at the Commission’s initiative.
On 25 July 2022, Mr Paul Toogood (the Applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleged he was unfairly dismissed by PSD Plumbing Pty Ltd (the Respondent) on 6 July 2022.
The matter was listed for conference before a staff conciliator on 26 August 2022 where the matter did not settle. The matter was subsequently allocated to my chambers and a mention and programming hearing was scheduled for 8 September 2022.
At the hearing both the Applicant and Respondent were present and the dates for filing of materials were laid out. Parties were put on notice that the dates were required to be complied with. Should there be a need for any change the parties were required to seek leave of the Commission. The settled dates were confirmed in writing in an email to the parties on 8 September 2022. Th notice of listing of a two-day hearing were sent on 13 September 2022.
On 21 September 2022, the Applicant received a reminder telephone call that his materials were due. He gave an undertaking that should he have any difficulty in complying with the directions he would seek an extension.
The Applicant’s materials were due by 5.00pm on 22 September 2022. On 26 September 2022, an email was sent seeking a response no later than 5.00pm on 27 September 2022 advising why materials had not been filed. The email stated that failure to comply may result in the matter being listed for a non-compliance hearing, dismissed or determined on the materials before the Commission. No response was received by the Applicant.
On 30 September 2022, a telephone call to the Applicant went unanswered and a voicemail message seeking a response was left with the Applicant. No response to the voicemail message was received.
On 3 October 2022, the parties were sent a notice of listing for a noncompliance hearing on 12 October 2022.
On 11 October 2022, a phone call was made to the Applicant. The Applicant confirmed his attendance for the non-compliance hearing.
At the non-compliance hearing the Applicant and Respondent were present. The Applicant advised that he did not comply with directions because his phone was stolen and could not access his emails. He indicated that he wanted to pursue his application because he was summarily dismissed but did not make any effort or propose to submit materials. I observe that during prior telephone communications at no point did the Applicant advise that he had difficulty accessing his emails. In fact, I can see from the Commission’s file that he had responded to the Commission’s emails for the conference with a staff conciliator and for my mention and programming hearing. While directing questions to the Applicant during the hearing, he expressed that “this is fucked” and hung up. Two attempts to contact the Applicant to return him to the hearing went unanswered and he did not respond to the voice mail messages that were left.
The Legislation
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.”
Consideration and Conclusion
At the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).
The Applicant was well aware of the requirement to file his materials and he received a timely reminder to comply with the due date. I am satisfied that he understood the consequences of failure to comply with direction. Specifically, that this may result in dismissal of his application or a decision in the absence of his materials. The Applicant disengaged from the Commission both following the programming hearing and during the noncompliance hearing. Further he has not responded to further telephone calls.
I am satisfied that the Applicant had ample opportunity to advise the Commission of any difficulty he had with complying with the directions but made no effort to communicate with my chambers.
I have decided to dismiss the Application for the reason that numerous attempts have been made to engage with the Applicant, but in the absence of any materials in support of his application or his engagement in the process, the matter has no prospect of success.
On this basis, the application is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.
An order[1] to that effect will be issued with this decision.
COMMISSIONER
[1] PR746858.
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