Samuel Matthews v Pulse Travel Pty Ltd

[2024] FWC 733

[2024] FWC 733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Samuel Matthews
v

Pulse Travel Pty Ltd

(C2023/6343)

COMMISSIONER HUNT BRISBANE, 21 MARCH 2024

Application to deal with contraventions involving dismissal – matter resolved at conference – application not discontinued – Applicant has not communicated with the Commission – application dismissed.

1. On 16 October 2023, Mr Samuel Matthews made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed by Pulse Travel Pty Ltd (the Respondent) in contravention of the general protection provisions of the Act.

1. Mr Matthews nominated 29 September 2023 as the date of his dismissal. Accordingly, the application has been made within the 21-day time limit prescribed by the Act.

1. On 7 November 2023, the matter was allocated to me. In accordance with s.368 of the Act, I listed the matter for conference on 20 November 2023.

1. The matter was resolved during the conference on 20 November 2023. Accordingly, I provided terms of settlement to the parties, based on the Fair Work Commission’s (the Commission) standard terms, reflecting the agreement that had been reached during the conference. I notified the parties that upon receipt of signed copies of the terms of settlement from both parties, the matter will be taken to be discontinued pursuant to rule 10 of the Fair Work Commission Rules 2013.

1. The Respondent provided a copy of the signed terms of settlement to my chambers on 24 November 2023. Having not received a signed copy of the terms of settlement from Mr Matthews, on 30 January 2024, I requested that he confirm whether he had signed the terms of settlement. Mr Matthews did not respond to this correspondence.

1. On 27 February 2024, I requested that Mr Matthews confirm whether he had signed the terms of settlement by 29 February 2024. Mr Matthews did not contact the Commission as requested.

1. On 12 March 2024, I directed Mr Matthews to confirm whether he had signed the terms of settlement by 15 March 2024. I informed the parties that my preliminary view was that, if Mr Matthews did not comply with my direction, I would dismiss his application for want of prosecution. Mr Matthews did not respond to my correspondence, as directed. Mr Matthews has failed to correspond with the Commission since the conference held on 20 November 2023. As an aside, it is noted that the Respondent has complied with the settlement terms in the absence of Mr Matthews having returned the signed terms.

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 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.”

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. Mr Matthews has showed no willingness to engage with the Commission since the conference on 20 November 2023, at which the parties expressed that they considered the considered the matter to be resolved. Despite being given a number of opportunities to discontinue his application, Mr Matthews has failed to do so.

1. 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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