Mr Ravinesh Prasad v Student One Pty Limited T/A Student One

[2020] FWC 3796

[2020] FWC 3796

FAIR WORK COMMISSION

DECISION

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

Mr Ravinesh Prasad
v
Student One Pty Limited T/A Student One
(U2020/4154)

COMMISSIONER BOOTH BRISBANE, 20 JULY 2020

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

[1] On 3 April 2020, Mr Ravinesh Prasad (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 Student One Pty Limited T/A Student One (the Respondent). The Applicant stated he was employed by the Respondent from 6 February 2018 until his dismissal took place on 18 March 2020.

[2] The matter was listed for conciliation conference before a Fair Work Commission staff conciliator on 12 May 2020. The staff conciliator made a number of attempts to dial the Applicant for the conciliation, but was unsuccessful. The conciliation was therefore unable to take place.

[3] The matter was referred to my Chambers for determination. I issued directions for filing of material on 5 June 2020. The Applicant was directed to file materials in support of his application as well as any witness statements or documentary material by no later than 26 June 2020. I also issued a Notice of Listing for a mention and conference to be held on 18 June 2020. The parties were asked to confirm their contact details to Chambers, for the purposes of the mention and conference, by 15 June 2020.

[4] Correspondence was sent to the Applicant on 17 June 2020, advising that Chambers had not received confirmation of his contact number for the conference. The Applicant was asked to provide these details by 4pm that day, and if no response was received the conference would be vacated and the matter would proceed in accordance with the directions.

[5] No response was received from the Applicant. On 18 June, correspondence was sent to all parties advising that the telephone mention and conference was vacated accordingly.

[6] The Applicant failed to comply with the Directions. The Applicant’s materials were not received to Chambers by 26 June 2020 as directed. The Respondent wrote to Chambers on 1 July 2020, advising it was not in receipt of these materials and was unable to prepare its response. The Respondent noted in this correspondence that all outstanding entitlements had been paid to the Applicant.

[7] Correspondence was sent from my Chambers on 2 July 2020, seeking an urgent response from the Applicant in relation to filing of his materials. He was allowed a further period until close of business 3 July to provide any response. This correspondence advised that in the event no response was received, consideration would be given to dismissing his application.

[8] On 6 July 2020, further correspondence was sent from my Chambers noting the Applicant had failed to respond by 3 July. The correspondence advised that I was now considering a decision to dismiss the application, and the Applicant was allowed until close of business 9 July 2020 to provide any submissions why the application should not be dismissed.

[9] The Applicant did not provide any response as directed.

[10] On 16 July 2020, the Respondent wrote to my Chambers seeking an update in light of the Applicant’s failure to provide any response. A reply was sent to all parties at 1:55pm on that same date, confirming my decision would issue in due course.

[11] At 2:12pm on 16 July 2020, the Applicant wrote to my Chambers (by reply email, from the email address on file) advising:

“I have been dealing with some family matters and would appreciate if you could give me until tomorrow to finish my response. Please advise.

Kind regards,

Rav Prasad”.

[12] A response was sent seeking further details from the Applicant in relation to his extension request. He was allowed until close of business that day, 16 July 2020, to provide these further details.

[13] No response was received from the Applicant on 16 July 2020, nor on 17 July 2020.

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

[15] 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.”

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

[17] 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

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Prasad has failed to respond to various correspondence from Chambers, and has failed to file any material in the matter beyond his initial Form F2. Mr Prasad has failed to provide any reasonable explanation to the Commission for his failure to comply with directions. Mr Prasad has shown no willingness to prosecute his case and taken no steps to do so.

[19] 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.

[20] 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].