Nathan Wells v Erect Safe Scaffolding

[2024] FWC 2606

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nathan Wells
v

Erect Safe Scaffolding

(U2024/7461)

DEPUTY PRESIDENT EASTON

SYDNEY, 20 SEPTEMBER 2024

Application for an unfair dismissal remedy – applicant’s conduct or omissions show that they are no longer willing to participate in their own case – application dismissed under s.587(3).

On 30 June 2024 Mr Nathan Wells made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

For the following reasons I am satisfied that Mr Wells’ application should be dismissed for want of prosecution.

Mr Wells advised in the Form F2 Unfair Dismissal Application that he worked for Erect Safe Scaffolding (ESS). ESS raised an objection to the unfair dismissal application because it says Mr Wells was not a direct employee of ESS, that ESS are the host firm, and that Mr Wells a labour hire worker employed by Fortworx Pty Ltd.

An F2 – Unfair Dismissal Claim should only be lodged against the employer an Applicant was directly employed by. Mr Wells was invited to provide information on 2 August 2024 that could show that he had in fact been employed by ESS. Mr Wells did not provide any response.

On 27 August 2024 Mr Wells was also specifically invited to provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c).

Mr Wells has not responded.

Section 587

The relevant provisions in s.587 of the Act are 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.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c) (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] and the cases cited therein).

I am satisfied that Mr Wells has demonstrated that he does not intend to prosecute his application. Mr Wells has ignored the Commission’s inquiries about a significant aspect of his claim.

I am satisfied that Mr Wells has had the opportunity to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587 (see Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16]).

I have separately made an order to this effect (PR779484).

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Nathan Wells v Erect Safe Scaffolding, the applicant, Nathan Wells, sought a remedy for unfair dismissal against Erect Safe Scaffolding (ESS). ESS contested the application, arguing that Mr Wells was not their direct employee, but rather a labour hire worker employed by Fortworx Pty Ltd. The dispute arose from Mr Wells' claim that he was unfairly dismissed by ESS, but ESS maintained that it was not his direct employer. The Fair Work Commission, led by Deputy President Easton, was tasked with resolving this dispute.

The primary legal issue before the Commission was whether Mr Wells had the right to bring his unfair dismissal claim against ESS, given that ESS claimed he was not their direct employee. Additionally, the Commission had to determine whether the application could be dismissed under Section 587 of the Fair Work Act 2009 due to Mr Wells' lack of engagement in the proceedings. This involved assessing whether Mr Wells' failure to respond to the Commission's requests for information and submissions constituted a lack of intent to prosecute his claim.

The Commission found that Mr Wells had not provided any information or response to the requests made by the Commission, which significantly impacted the prospects of his claim. The Commission relied on Section 587(3) of the Act, which allows the dismissal of an application if the applicant has not participated in the proceedings. Given Mr Wells' inaction, the Commission concluded that he did not intend to pursue his application, thereby fulfilling the requirement for procedural fairness. Consequently, the application was dismissed for want of prosecution.

As a result of the dismissal, no further action will be taken on the unfair dismissal claim. The Commission's decision was based on Mr Wells' failure to respond to the Commission's inquiries and submissions, leading to the conclusion that he was no longer willing to participate in his own case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established