Mr Thomas James v Cater Care Services Pty Ltd

[2023] FWC 258

[2023] FWC 258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Thomas James
v

Cater Care Services Pty Ltd

(C2022/7437)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 14 AUGUST 2023

Application to deal with contraventions involving dismissal - application dismissed.

1. Mr Thomas James made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). Mr James alleges he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. For the reasons that follow, the application is dismissed for an unreasonable failure to comply with directions.

Context

1. The application was lodged on 8 November 2023 alongside four other applications made by Mr James pursuant to s 365 of the Act against different employers.

1. The application was missing responses to questions 1.1, 1.2, 1.3, 2.1, 3.1, 3.2 and 3.3, which represents the majority of the application form. The only contact details provided by Mr James was the postal address for “Capricornia Correctional Centre” in Queensland. Accordingly, the Commission proceeded to correspond with Mr James by way of registered express post to the correctional facility.

1. On 15 November 2022, the Commission posted correspondence to Mr James requesting that he complete his application by 28 November 2022. No response was received.

1. The Commission sent further correspondence on 30 November 2022, which similarly requested that Mr James complete his application by 7 December 2022. The Commission was informed by the delivery service that this correspondence was not delivered until 7 December 2022. In any event, no response was received from Mr James.

1. Further correspondence was sent by the Commission on 13 December 2022, which similarly requested that Mr James complete his application by 20 December 2022. No response was received from Mr James.

1. The Commission received a letter from Mr James on 15 December 2022. Mr James advised that he was currently incarcerated. Mr James identified that the Commission had returned to him four of the five general protections applications he had made on 8 November 2023 as he had not completed all the questions on the applications. Mr James explained his inability to complete the forms on the basis of him not having his personal work history available. Mr James explained that he sent a letter to the Australian Tax Office seeking the information, and requested an extension of time to provide the completed application to the Commission. Mr James also requested the Commission arrange for him one hour with a lawyer to advise him in relation his “case,” and directed the Commission to correspond with the correctional facility to arrange this meeting.

1. The Commission sent directions dated 8 February 2023 to the respondent by email on 9 February 2023 and to Mr James by express post on 9 February 2023. The directions were issued for the purposes of determining whether the Commission should allow Mr James further time to make his application, as Mr James had identified that his application was lodged outside the 21-day statutory timeframe for applications made under s 365 of the Act.[1] Mr James was required to file in the Commission an outline of argument, statement of evidence and a document list in support of his application for an extension of time. Mr James was also invited to settle the dispute as the remedy he sought was simply a “dismissal letter.”[2]

1. Pursuant to the directions, the respondent lodged its Form F8A response with the Commission on 13 February 2023. The respondent objects to the application on the basis that Mr James was not dismissed, and that the application was out of time. The respondent contends that Mr James was last engaged by it on 26 February 2019 and that Mr James had informed the respondent that he was unavailable for work due to a death in the family on 5 March 2019.

1. Mr James failed to comply with the directions dated 8 February 2023, and otherwise did not communicate at all with the Commission.

1. On 5 May 2023, further directions were issued in response to Mr James’ non-compliance with the 8 February 2023 directions, and because Mr James had not contacted the Commission in several months. The further directions stated, relevantly, as follows:

“An unreasonable failure to comply with directions provides a basis for the Commission to dismiss the general protections application pursuant to s 587 of the Fair Work Act 2009 (Cth).

The Deputy President’s preliminary view is that the application should be dismissed…”

1. Mr James was directed to advise the Commission whether he wished to continue or discontinue his application by 19 May 2023. In the event that Mr James sought to pursue his application, he was required to provide any materials explaining why the Commission should not dismiss his application for a failure to comply with the directions dated 8 February 2023.

1. Mr James did not comply with the 5 May 2023 directions, and has otherwise not communicated with the Commission since 15 December 2022.

1. On 15 May 2023, the Commission received the correspondence posted to Mr James on 5 May 2023 stamped “return to sender” “no longer / unknown at this address.”

Consideration

1. Section 587 of the Act sets out when the Commission may dismiss an application. It provides:

(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.

…

(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.

1. The Commission is not limited in the ways in which it may dismiss an application under s 587(1). However, in the context of an application under s 365, the Commission must not dismiss the application for a reason prohibited by s 587(2).

1. For applications made under s 365 of the Act, a basis to dismiss an application pursuant to s 587 of the Act may arise where there has been a failure to comply with a direction, attend a hearing, comply with the rules, or take steps to “prosecute” an application in the sense that there is a delay attributable to a failure on the part of an applicant.[3]

1. Where the whole of the circumstances leads to a conclusion that there has been an inexcusable or unreasonable delay in the application, this may justify the exercise of the discretion to dismiss an application. This may involve consideration as to the blame attributable to the applicant, prejudice to and complaint of the respondent, and involves a balancing of the Commission’s overarching considerations and the objectives of the Act.[4]

1. The Commission issued directions dated 8 February 2023 and 5 May 2023. I am satisfied that Mr James was properly served with the directions as both were provided to his preferred address via registered express post. Irrespective of the fact that the 5 May 2023 directions were returned to the Commission on 15 May 2023, Mr James has not communicated with the Commission in any capacity since 15 December 2022. I am satisfied that Mr James has not provided any explanation for his failure to comply with the directions dated 8 February 2023.

1. I consider the following matters weigh in favour of the exercise of the discretion to dismiss the application.

1. First, the Commission is required to perform its functions in a manner that is “quick.”[5] This is particularly important in general protections matters where the Commission is exercising an essentially preliminary jurisdiction.[6] The application was filed over nine months ago and no substantial progress has been made with respect to the application. The delay is wholly attributable to the Mr James’ failure to communicate with the Commission, including his failure to comply with the directions dated 8 February 2023 and 5 May 2023.

1. Second, Mr James has not advised the Commission of any change in his contact details such that there is a reasonable basis to assume that he has not received the Commission’s correspondence, including the 8 February 2023 directions.

1. Third, Mr James was granted a waiver of the application fee and has not, on the Commission’s records, retained a representative in any capacity. It therefore follows that the time and cost incurred by the applicant in making this application has been minimal.

1. Fourth, Mr James has not been in contact with the Commission since 15 December 2022. Since this date, Mr James has not indicated any intention to press his application in the Commission.

1. Finally, as stated at [3] above, this application was one of five s 365 applications made by Mr James on 8 November 2022 against various businesses. This is the only application in which the 5 May 2023 directions were returned to the Commission. I do not consider that the return of the 5 May 2023 directions to the Commission weighs against the exercise of my discretion to dismiss the application in circumstances where (a) the Commission is unable to further communicate with Mr James at his preferred mailing address, (b) the Commission holds no other contact details for Mr James, and (c) Mr James has not contacted the Commission to progress his application since 15 December 2022.

1. In the circumstances, I consider it appropriate to exercise my discretion to dismiss the application in accordance with the general power in s 587(1) of the Act. I do so on the basis that Mr James has unreasonably failed to comply with the 8 February 2023 directions of the Commission.

Conclusion and disposition

1. Having regard to the above matters and the conclusions reached, the application is dismissed.

DEPUTY PRESIDENT

[1] Fair Work Act 2009 (Cth) s 366(1)

[2] Form F8 at 2.1

[3] Bosworth v Coles Supermarket Beechboro T/A Coles Supermarket Beechboro[2022] FWCFB 153 at [48]

[4] Fair Work Act 2009 (Cth) ss 577-578 as well as the objectives of the Act and Parts of the Act

[5] Fair Work Act 2009 (Cth) s 577(b)

[6] Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628 at [90]

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