Mr Shane Olsen v Pennington Produce Pty Ltd T/A Bundaberg Fresh Food Market

[2019] FWC 8544

[2019] FWC 8544

FAIR WORK COMMISSION

DECISION

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

Mr Shane Olsen
v
Pennington Produce Pty Ltd T/A Bundaberg Fresh Food Market
(U2019/5308)

COMMISSIONER BOOTH BRISBANE, 18 DECEMBER 2019

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

[1] Mr Shane Olsen (the Applicant) has applied to the Fair Work Commission (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 Pennington Produce Pty Ltd T/A Bundaberg Fresh Food Market (the Respondent) on 28 April 2019.

[2] On 12 July 2019, the matter was listed for conciliation however did not proceed due to the Respondent being uncontactable.

[3] On 15 July 2019, the Respondent sent correspondence to the Commission to the effect that the business was “broke” and due to the Respondent contact person suffering acute depression he was unable to take any phone calls and was experiencing difficulty opening emails.

[4] The matter was allocated to my Chambers on 25 July 2019 for further dealing.

[5] On 5 August 2019, the Respondent was instructed to file a Form F3 Employer Response to the application by 9 August 2019 and was advised that if an adjournment in the matter was required, or a further period to file a response, then reasons should be provided to the Commission with supporting medical evidence if relevant.

[6] No response was received from the Respondent.

[7] On 5 September 2019, my Chambers issued a notice of listing for a telephone conference to be held on 9 September 2019.

[8] The conference did not proceed due to both the Applicant and Respondent being uncontactable.

[9] On 11 September 2019, I instructed my Associate to write to parties regarding their failure to attend the scheduled conference on 9 September 2019. The Applicant was invited to advise the Commission whether he sought to continue with his application by 18 September 2019, or alternatively whether he intended to file a Notice of Discontinuance. The Commission received no response from either party in relation to this correspondence.

[10] Accordingly, further correspondence was sent on 2 October 2019, allowing the Applicant a further period until 11 October 2019 to provide reasons why his application should not be dismissed. No response was received.

[11] 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.”

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

[13] 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

[14] 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.

[15] 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.

[16] In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss 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].