Peter Roberts v Mass Resources (Qld) Pty Ltd

[2023] FWC 2586

[2023] FWC 2586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Peter Roberts
v

Mass Resources (Qld) Pty Ltd

(C2023/4463)

COMMISSIONER HUNT BRISBANE, 6 OCTOBER 2023

Application to deal with contraventions involving dismissal – Applicant shown no willingness to prosecute case – non-compliance with Commission directions – application dismissed.

1. On 26 July 2023, Mr Peter Roberts made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed by Mass Resources (Qld) Pty Ltd (the Respondent) in contravention of the general protection provisions of the Act.

1. Mr Roberts nominated 14 July 2023 as the date of his dismissal. Accordingly, the application has been made within the 21-day time limit prescribed by the Act.

1. In a Form F8A, the Respondent raised a jurisdictional objection that Mr Roberts had not alleged that his dismissal was in contravention of the general protections in the Act. However, the Respondent’s material within the Form F8A was to the effect that the Respondent objected to the application on the grounds that Mr Roberts had not been dismissed.

1. Accordingly, in correspondence issued to the parties by my chambers on 25 August 2023, I informed the parties that the matter would proceed on the basis of the Respondent’s jurisdictional objection that Mr Roberts had not been dismissed. I issued directions to the parties requiring them to file materials in relation to the Respondent’s jurisdictional objection.

1. At a preliminary conference held on 13 September 2023, Mr Roberts indicated that he had not seen the Respondent’s Form F8A and would not be able to file materials in accordance with the directions by 15 September 2023. Therefore, I granted Mr Roberts an extension until 22 September 2023 for the filing of his materials.

1. Mr Roberts did not file any materials to my chambers by 22 September 2023 and did not seek a further extension. On 26 September 2023, I directed Mr Roberts to provide an explanation, by 27 September 2023, as to why he had not filed material in accordance with my directions. He was informed that failure to provide a suitable explanation may result in his application being dismissed for want of prosecution, in accordance with s.587 of the Act.

1. Mr Roberts did not provide an explanation for his non-compliance by 27 September 2023. Accordingly, on 3 October 2023, I informed the parties the matter would be listed for a Non-Compliance Hearing on 6 October 2023.

1. On 6 October 2023, I conducted a telephone Non-Compliance Hearing. Numerous attempts were made by my Associate to contact Mr Roberts, without success.  Mr Roberts has filed to correspond with my chambers since the preliminary conference held on 13 September 2023.

1. 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a)        is frivolous or vexatious;

(b)        has no reasonable prospects of success.

(3)        The FWC may dismiss an application:

(a)        on its own initiative; or

(b)        on application.”

Consideration

1. The words, “without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. I have satisfied myself that it is not possible to determine Mr Roberts’ application in the absence of sworn evidence from him, nor is it fair to deny the Respondent the opportunity to cross-examine him.

1. Mr Roberts has showed no willingness to progress his application in accordance with the Commission’s directions or otherwise. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

COMMISSIONER

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