Phillip Moli Patu v The Good Guys Discount Warehouse (Australia) Pty Ltd

[2020] FWC 399

[2020] FWC 399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip Moli Patu
v
The Good Guys Discount Warehouse (Australia) Pty Ltd
(U2019/7123)

DEPUTY PRESIDENT KOVACIC CANBERRA, 6 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 28 June 2019 Mr Phillip Moli Patu (the Applicant) lodged an application under s. 394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by the Good Guys Discount Warehouse (Australia) Pty Ltd (the Good Guys – the Respondent) on 28 June 2019.

[2] The matter was listed for a Conciliation on 15 August 2019 before one of the Commission’s conciliators.

[3] On 12 August 2019 Mr Moli Patu’s partner contacted the Commission and advised that Mr Moli Patu could not attend the Conciliation as he was incarcerated and that it appeared that he would not be released until 24 October 2019. During this telephone call, his partner agreed that she would communicate with Mr Moli Patu and the prison to see if the Applicant could obtain a telephone for the conciliation.

[4] No further communication was received from the Applicant or his partner regarding a telephone number and the conciliation proceeded as scheduled, with text message reminders sent on 14 August 2019.

[5] On 15 August 2019 the conciliator was unable to contact the Applicant as no phone number had been provided and contacted the Applicant’s partner who advised that the Applicant was incarcerated until 24 October 2019 and was therefore not available for the conciliation. That same day the Respondent emailed the Commission requesting that the matter be set aside should the Applicant not withdraw his application.

[6] On 16 August 2019 the Applicant was advised that his application would now be allocated to me and adjourned until 24 October 2019 or until the parties advised of a change in circumstances whichever was earlier.

[7] On 15 November 2019 my chambers received the following email from the Respondent:

“We note that on 15 August 2019 the Applicant failed to attend their conciliation due to their incarceration. As a result, this application was put on hold until the 23rd October 2019.

We’ve not received any information to support that this has been withdrawn and given the hold date has passed I was just seeking if you had an update or if there was anything required from us at this stage?

Please feel free to contact me should you require any further information in relation to this matter.”

[8] On 5 December 2019 my chambers emailed the Applicant. The email stated:

“The Deputy President refers to the below correspondence received from the Respondent and requests an indication as to whether you intend to proceed [sic] your application or intend to discontinue (Form F50 – notice of discontinuance attached).

Please provide a response by 4pm Thursday, 12 December 2019, in the absence of a response the Deputy President will assume that you do not wish to pursue your application and that it may therefore be dismissed.” (Emphasis as per original)

[9] No response was received.

[10] In subsequent developments, on 10 January 2020, I wrote to the Applicant in the following terms:

“I refer to your unfair dismissal application which was received by the Fair Work Commission (the Commission) on 28 June 2019.

Your application was listed for a conciliation conference on 15 August 2019 before one of the Commission’s conciliators. You did not attend that conference. Your partner, Tegan, advised the Commission that you could not attend conciliation as you were in incarcerated until 24 October 2019 and that you might withdraw your application following your release. You were sent a copy of a Form F50 – Notice of Discontinuance that same day. The Respondent also wrote to the Commission on 15 August 2019 noting that if you did not withdraw your application they requested that the Commission set aside your application on the basis it would be time consuming and costly, in circumstances where the claim has no reasonable basis.

Your application was then allocated to a member of the Commission and adjourned until your release. In the absence of any contact from you following your release my chambers wrote to you on 5 December 2019 seeking an indication as to whether you intended to proceed with your application or wished to discontinue. No response was received.

In circumstances where you failed to attend either the abovementioned conciliation conference and have not responded to the various correspondence referred to above, I seek an indication by no later than 4pm on Tuesday, 14 January 2020 as to whether you intend to press your application. Should you not respond your application may be dismissed without further recourse to the parties pursuant to s. 587(1) of the Fair Work Act 2009 (Cth) and at the Commission’s own initiative [s. 587(3)(a)].

Alternatively, if you do not intend to proceed with your application please complete and return the Form F50 attached to this email.” (Emphasis as per original)

[11] The Applicant has not responded to the above correspondence or made any contact with the Commission regarding his application.

[12] It is clear from the above chronology that the Applicant has taken no steps to prosecute his unfair dismissal application despite repeated attempts by the Commission to ascertain his intentions regarding the matter.

[13] Against that background and as foreshadowed in the Commission’s most recent correspondence to the Applicant, I have decided to dismiss his application pursuant to s.587 of the Act.

[14] By way of background, s.587 sets out the Commission’s general powers to dismiss an application. Specifically, s.587 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.
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.”

[15] As can be seen from the terms of s.587, the provision does not limit the grounds upon which the Commission may on its own motion dismiss an application. Nevertheless, as noted by Deputy President Sams in Nick Williams v Sydney Gay & Lesbian Business Association t/a Sydney Gay & Lesbian Business Association (Williams) 1 “[i]t has long been held by the Courts, Commissions and Tribunals that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so”. Having regard to the above extract from the decision in Williams, in circumstances where the Commission has written to the Applicant on a number occasions regarding his application and received no response or any contact from him, the Commission can hardly be accused of dismissing his application hastily. It is clear that the Applicant has been given adequate opportunity to press his application but has failed to do so and/or to engage with the Commission regarding his application following his expected release in late October 2019.

[16] In deciding to dismiss the application I have also had regard to the views of the Full Bench in Peter Viavattene v Health Care Australia 2 which said:

“[39] …There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” 3 (Underlining added)

[17] In my view, in circumstances where it appears that the Applicant does not intend to prosecute his unfair dismissal application, it would be unfair and unreasonable to keep the Respondent on tenterhooks regarding the matter. Further, continued efforts by the Commission to clarify the Applicant’s intentions regarding his application are in my view unlikely to be successful.

[18] For all the above reasons and in the light of the Applicant’s failure to prosecute his unfair dismissal application, I have decided to exercise the discretion available to the Commission under s.587 of the Act to dismiss his application. An order to that effect will be issued in conjunction with this decision.

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 1   [2019] FWC 4399 at [12]

 2   [2013] FWCFB 2532

 3   Ibid at [39