Mr Tony Szymanski v Keri Hamilton Trust Fund T/A Channel Inn

[2020] FWC 2279

[2020] FWC 2279

FAIR WORK COMMISSION

DECISION

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

Mr Tony Szymanski
v
Keri Hamilton Trust Fund T/A Channel Inn
(U2019/11258)

COMMISSIONER BOOTH BRISBANE, 1 MAY 2020

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

[1] On 8 October 2019, Mr Tony Szymanski (the Applicant) applied to the Fair Work Commission (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 Keri Hamilton Trust Fund T/A Channel Inn.

[2] The matter was listed for conciliation before a Fair Work Commission Conciliator on 7 November 2019 but was unable to be resolved.

[3] The matter was then allocated to my Chambers on 12 November 2019 for dealing of the jurisdictional objection of the Respondent, that the Applicant had not been dismissed in accordance with s.386 of the Act and the Respondent, being a small business employer, complied with the Small Business Fair Dismissal Code.

[4] A directions conference was conducted by telephone on 13 December 2019, to which the parties commenced negotiation discussions to attempt to resolve the matter.

[5] On 20 December 2019, correspondence from my Chambers was sent to the parties, seeking an update on the status of the parties’ negotiation and whether the parties required further assistance from the Commission.

[6] As neither party responded, a further email was sent from my Chambers on 30 January 2020. The Applicant was required to provide a response by close of business on 3 February 2020.

[7] My Associate attempted to contact the Applicant on the mobile number previously nominated by him on 26 February 2020 and left a voicemail. Correspondence was again sent from my Chambers on the same date, requesting the Applicant to provide an update to Chambers by close of business on 2 March 2020. The Applicant was also advised that if no correspondence is received, the file may be closed.

[8] To date, the Applicant has not responded to correspondence sent from my Chambers, nor contacted my Chambers to provide an update of his matter.

[9] 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.”

[10] Section 593 of the Act provides the Commission is noted require to hold a hearing except as provided by the Act.

[11] 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

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. 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 not responding to various correspondence with the Commission. The Applicant has therefore shown no willingness to prosecute his case.

[13] 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.

[14] 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].