Paul Thomas Kelly v Prestige Recruitment & Labour Hire Pty Ltd

[2022] FWC 688

[2022] FWC 688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Paul Thomas Kelly

v

Prestige Recruitment & Labour Hire Pty Ltd

(C2022/829)

DEPUTY PRESIDENT BINET PERTH, 5 APRIL 2022

Application to deal with contraventions involving dismissal  – application dismissed pursuant to s.587

1. On 31 January 2022 Mr Paul Kelly (Mr Kelly) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging Prestige Recruitment & Labour Hire Pty Ltd (Prestige) contravened the general protection provisions of the FW Act by discriminating against him.

1. On 14 February 2022, Prestige filed a Form F8A – Response to a General Protections Application alleging that Mr Kelly was not dismissed by Prestige (Jurisdictional Objection).

1. On 3 March 2022, the parties participated in a conciliation conference before me, however the issues in dispute could not be resolved. At the conclusion of the conciliation conference I explained to Mr Kelly that directions would be issued to the parties which would require him to file certain materials by a specified date. I explained to him the nature of these materials and that resources were available on the FWC website which would assist him prepare his materials. I explained to him if he did not file his materials by the due date and did not seek an extension to file those materials the Application could be dismissed pursuant to section 587 of the FW Act.

1. On 4 March 2022, directions were issued to the Parties (Directions). Paragraph [6] of the Directions, required Mr Kelly to file with the FWC and serve on Prestige by 4pm on Tuesday 15 March 2022 an outline of submissions, any evidence on which he relied and copies of any authorities on which he relied in relation to the Jurisdictional Objections. The Directions stated that compliance with the Directions was mandatory and that a failure to comply may disadvantage the party concerned.

1. Mr Kelly failed to file any materials in accordance with the Directions or seek an extension to do so within the timeframes set out in the Directions.  On 17 March 2022, Chambers wrote to Mr Kelly and informed him that he would need to apply for an extension to file his materials late. Mr Kelly was directed to provide reasons for his failure to file materials in accordance with the Directions by Monday 21 March 2022. Mr Kelly was also directed to file the materials set out in the Directions under paragraph [6] Monday 21 March 2022. Mr Kelly was informed that a failure to do so may result in the Application being dismissed. My Chambers informed Mr Kelly that if he no longer wished to pursue his Application or comply with the Directions, he could file a Form F50 Notice of Discontinuance with Chambers.

1. Section 587 of the FW 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.”

1. Sub-section 587(2) prohibits the FWC relying on section 587 to dismiss an application made pursuant to section 365 on the grounds that the application is frivolous, vexatious or with no reasonable prospects of success. It does not however prevent the FWC from relying on section 587 to dismiss dismissing an application made pursuant to section 365 per se.

1. Nor does sub-section 587(2) limit the grounds on which the FWC may dismiss an application made pursuant to section 365 to only those circumstances in which the application is not made in accordance with the FW Act.

1. For example in Mcleod v Kulgera Trading Company Pty Ltd,[1] Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC’s repeated attempts to get in contact with her and had failed to participate in a teleconference.

1. In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[2] (Tomas) in which she stated:

   “[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”

1. In a number of cases since the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC.

1. The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. The power to dismiss a substantive application should only be exercised cautiously and sparingly because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.[3]

1. However, in all of the circumstances, I am satisfied that Mr Kelly was aware of what was required of him regarding compliance with the directions. Despite being given multiple opportunities to file his materials and assistance and guidance to do so Mr Kelly has failed to file any materials in support of his Application.

1. Due to the history of non-compliance, I am not satisfied that Mr Kelly is likely to comply with further directions of the FWC.

1. In the circumstances, and on balance, it is appropriate that the Application be dismissed for want of prosecution under section 587 of the Act.

1. An order[4] to this effect will issue with this Decision.

DEPUTY PRESIDENT

[1] [2014] FWC 2112.

[2] [2011] FWA 5458.

[3] Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925.

[4] PR739770.

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