Nathan Daniel Jones v David Archibald
[2024] FWC 2893
•17 OCTOBER 2024
| [2024] FWC 2893 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.372—General protections
Nathan Daniel Jones
v
David Archibald
(C2024/6377)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 17 OCTOBER 2024 |
Section 372 application - Applicant failed to pursue application - application dismissed pursuant to s.587 of the Act.
On 4 September 2024 Mr Nathaniel Jones (the Applicant) lodged a s.372 application against David Archibald (the Respondent). The matter was allocated to my Chambers on 19 September 2024. Having reviewed the application it appeared that it was potentially an underpayment of wages claim but also that the Applicant was no longer employed by the Respondent. Given this, on 20 September 2024 I sent the applicant the following email:
“Dear Mr Jones,
The above application has been allocated to Deputy President O'Keeffe. The Deputy President has examined the paperwork filed and it appears to him that the claim is for unpaid wages. Such claims do not fall within the jurisdiction of the Fair Work Commission. Can you please advise by return email and no later than 4.00pm (AWST) Tuesday 24th September as follows:
1. If your claim is solely for unpaid wages; and
2. If not, is your claim about being dismissed from your employment; and
3. Were you advised to lodge your claim with the Fair Work Commission and if so by who?”
No response was received by the required time. Given this, on 2 October 2024 I sent an email referring to the above email and requesting a response by 4.00pm (AWST) on 4 October 2024. No response was received by that date. As such, on 7 October 2024 I sent the following email:
“Dear Mr Jones,
Deputy President O'Keeffe notes your failure to respond to two separate emails seeking to determine how your claim should progress. The Deputy President has formed the view based on your lack of responses that you do not wish to pursue your application. As such, he will issue a decision dismissing the claim unless you answer his questions posed on 20th September by 4.00pm (AWST) on Wednesday 9th October 2024. For your reference, those questions asked about your claim as follows:
1. If your claim is solely for unpaid wages; and
2. If not, is your claim about being dismissed from your employment; and
3. Were you advised to lodge your claim with the Fair Work Commission and if so by who?”
No response was received by specified date. On that basis, I have decided that the Applicant does not wish to pursue his application.
Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 (Samuel) at [12]) and that it has been found that an Applicant’s failure to prosecute their application can be a grounds for dismissal (Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [16]; Samuel at [13]; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp [2013] FWC 7641 at [8])
In this instance, I am persuaded to exercise my powers under s587 to dismiss the application. The Applicant has failed to respond to several emails and has been warned that failure to respond may result in dismissal. An order dismissing the application will issue.
DEPUTY PRESIDENT
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