Oran Canning v Beta Coolalinga Butchers

[2024] FWC 2350

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Oran Canning
v

Beta Coolalinga Butchers

(U2024/6410)

DEPUTY PRESIDENT EASTON

SYDNEY, 2 SEPTEMBER 2024

Application for an unfair dismissal remedy – application dismissed.

On 5 June 2024 Mr Oran Canning made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

A conciliation conference was scheduled on 15 July 2024 however Mr Canning did not attend.

Since then Mr Canning has not responded to any of the Commission’s attempts to contact him.

Section 587 of the Act provides:

“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. 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).

If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Canning’s application.

Mr Canning has also been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite possible that he has abandoned his application.

For these reasons I have decided to dismiss Mr Canning’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR778853).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Oran Canning applied to the Fair Work Commission for a remedy under section 394 of the Fair Work Act 2009, claiming unfair dismissal by Beta Coolalinga Butchers. A conciliation conference was set for 15 July 2024, but Mr Canning did not attend, nor has he responded to any subsequent attempts by the Commission to contact him. This situation led to the dismissal of his application. The Deputy President noted that under section 587 of the Act, the Commission has the power to dismiss an application if the applicant abandons the proceedings. The failure of Mr Canning to participate or respond to the Commission’s inquiries led the Deputy President to conclude that the application should be dismissed for want of prosecution. This decision was made under section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative, provided the applicant has been given procedural fairness.

The legal issue before the Deputy President was whether the Commission could dismiss Mr Canning's application under section 587 of the Act due to his lack of participation and response. The Deputy President considered that the language of section 587(1) does not limit the grounds for dismissal to the specific scenarios outlined in section 587(1)(a), (b), and (c). The case of Viavattene v Health Care Australia [2013] FWCFB 2532 was cited to support the proposition that if an applicant's conduct indicates they are no longer willing to pursue their application, the Commission is not obligated to continue with the proceedings. Mr Canning's inaction and non-attendance at the conciliation conference were deemed sufficient grounds to exercise the dismissal power under section 587(3)(a).

The Deputy President concluded that Mr Canning's application should be dismissed, as he had effectively abandoned the proceedings. The decision was made on the basis that Mr Canning had not responded to the Commission’s communications and had failed to attend the scheduled conciliation conference. The dismissal was executed under section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative if the applicant has been given procedural fairness. The Deputy President emphasized that Mr Canning had been on notice of the potential consequences of his inaction, and it was reasonable to infer that he had abandoned his application. An order was made to dismiss the application for want of prosecution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established