Mr Phillip Stone v The Bart Group T/A Sleeping Giant

[2020] FWC 602

[2020] FWC 602

FAIR WORK COMMISSION

DECISION

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

Mr Phillip Stone
v
The Bart Group T/A Sleeping Giant
(U2019/6050)

COMMISSIONER BOOTH BRISBANE, 5 FEBRUARY 2020

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

[1] Mr Phillip Stone (the Applicant) states he was employed by the Bart Group T/A Sleeping Giant (the Respondent) from 23 March 2019 until his dismissal took effect on 29 May 2019. On 31 May 2019, the Applicant applied to the Commission under s. 394 of the Fair Work Act 2009 (the Act) for a remedy, alleging he was unfairly dismissed from his employment with the Respondent.

[2] On 19 June 2019, the Commission sent correspondence to the Applicant, requiring him to provide a statement to support his claim that he had completed the minimum employment period to bring an unfair dismissal application. He was asked to provide this information by 26 June 2019; however, the Commission did not receive a response from the Applicant by that time.

[3] On 1 July 2019, further correspondence was sent by the Commission to the Applicant, directing him to respond by 4:00 pm, 4 July 2019 otherwise his application would be dismissed. On the same day, the Applicant responded stating he wished to continue his claim.

[4] The matter was referred to my Chambers on 2 July 2019, for determination of whether the Commission had jurisdiction to deal with the application. A Notice of Listing was issued to parties on 3 July 2019 for a Directions/Conference by telephone. This Conference was listed for 10:00 am on 22 July 2019. Parties were requested to provide the names and numbers to be dialled at the time of the conference by 4:00 pm, 15 July 2019. No correspondence was received from the parties prior to the conference.

[5] On 22 July 2019, my Associate attempted to contact the number provided by the Applicant in his Form F2. However, my Associate received a “number disconnected” message when attempting to contact the Applicant. Following this, correspondence from my Chambers was sent to the Applicant at 10:11 am, urgently seeking the Applicant to provide an updated contact number.

[6] At 1:25 pm on 22 July 2019, the Applicant provided an alternative private number. Accordingly, the parties were advised that the matter would be relisted for a conference.

[7] A Notice of Listing was issued to parties on 24 July 2019 for a further Directions Conference on 6 August 2019. Parties were requested to confirm the contact numbers by 26 July 2010.

[8] On the evening of 24 July 2019, the Applicant confirmed his attendance for the conference listed on 6 August 2019.

[9] On 6 August 2019, my Associate made multiple attempts to contact the Applicant on the private number previously provided, however was unsuccessful and left voicemails. Following this, correspondence from my Chambers was sent to the Applicant, seeking an urgent response by 8 August 2019 regarding whether he wished to continue his application.

[10] At 1:37 pm on 6 August 2019, the Applicant emailed my Chambers as follows:

“Hi.

I’m very sorry I missed this but I have been very busy with work and completely forgo[t].

I do wish to continue and will make sure I am prepared for the next appointment”.

[11] At 5:08 pm on 6 August 2019, correspondence from my Chambers was sent to parties. Parties were advised that the matter would be progressed, and the Respondent was requested to provide a completed copy of the Form F3 Employer Response.

[12] On 25 September 2019, my Chambers sent further correspondence to the parties. The Applicant was advised to make an appointment with the Workplace Advisory Service to provide him with general legal advice about progressing applications in the Commission and issues around the minimum employment period. The Applicant was required to advise whether he wished to continue with his matter upon obtaining advice from the Workplace Advisory service. The Respondent was required to file the Form F3 Response by no later than 1 October 2019. A blank Form F3 was attached. This correspondence was also sent to the parties’ postal addresses.

[13] On 23 October 2019, after receiving no response from the parties, correspondence was sent requesting parties provide a response by 25 October 2019. The Respondent wrote to my Chambers to advise that a response was emailed on the 24 September 2019 to which my Associate requested that the response be resent. Since that date, no further correspondence has been received from the Respondent.

[14] At 6:53 pm on 23 October 2019, the Applicant emailed my Chambers as follows:

“Please Proceed”.

[15] On 1 Friday 2019, formal directions were issued to parties for filing of materials in relation to the minimum employment matter. The Applicant was required to file materials by 8 November 2019, and the Respondent by 15 November 2019. A Notice of Listing was also issued to parties for a Jurisdiction Hearing at 10:00 am on 28 November 2019.

[16] On 6 November 2019, a further Notice of Listing was issued to parties advising the Jurisdiction Hearing listed on 28 November 2019 had been vacated due to an urgent matter arising. My Chambers received an “undeliverable” message from the Applicant’s email address. Accordingly, my Associate attempted to contact the Applicant on his nominated contact number, however was unsuccessful and voice messages were left.

[17] Correspondence was sent to the Applicant’s physical address with the Directions issued on 1 November, the Notice of Listing issued on 1 November 2019, and the cancellation of the Notice of Listing issued on 6 November 2019 enclosed. The Applicant was to contact my Chambers once he was in receipt of this correspondence so that his matter could be progressed.

[18] On 21 January 2020, after receiving no respondence from the Applicant, my Chambers sent further correspondence to the Applicant seeking a response why his application should not be dismissed for failure to comply with Directions from the Commission. The Applicant was required to respond by 31 January 2020.

[19] No response has been received from the Applicant to date.

[20] 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.”

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

[22] 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

[23] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant had failed to respond to numerous attempts made by the Commission to contact him. 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 demonstrated a persistent unwillingness to properly engage with the Commission by failing to attend a conference in the matter and not responding to correspondence with the Commission in respect to his application and in explaining his absence. In addition, the Applicant has not provided an explanation to the Commission for his failure to comply with directions. The Applicant has therefore shown no willingness to prosecute his case.

[24] 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.

[25] 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].