Seth Allen v Winslow Maintenance Pty Ltd

[2020] FWC 4266

[2020] FWC 4266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Seth Allen
v
Winslow Maintenance Pty Ltd
(U2020/8921)

DEPUTY PRESIDENT MANSINI MELBOURNE, 13 AUGUST 2020

Application for relief from unfair dismissal - s.587 - application dismissed.

[1] The Applicant in this matter, Mr Seth Allen (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (Cth) (the Act). By that application the Applicant sought an unfair dismissal remedy arising from his dismissal by Winslow Maintenance Pty Ltd (the Employer).

[2] I have determined to dismiss the application due to the Applicant’s non-compliance with the directions of the Commission. The reasons for this decision follow.

Context

[3] On 3 July 2020, a Notice of Listing was sent to the Applicant’s nominated postal address advising that the matter had been listed for a conciliation by telephone at 9:15am on 27 July 2020. The Notice of Listing requested that the parties provide their contact telephone numbers for the conciliation within 7 days of receipt of the Notice of Listing.

[4] Also on 3 July 2020, the Commission sent further correspondence to the Applicant’s nominated email address acknowledging receipt of his application and confirming that the matter was listed for conciliation on 27 July 2020. The correspondence contained links to guidance materials on the Commission’s website.

[5] On 24 July 2020 the Commission sent an SMS reminder to the Applicant’s nominated telephone number, providing a reminder that the matter was listed for conciliation at 9:15am on 27 July 2020.

[6] At 9:11am and 9:12am on 27 July 2020, the Commission made attempts to contact the Applicant on his nominated telephone number and a message was left. At 9:18am a text message was also sent requesting that the Applicant contact the Commission. At 9:30am the Commission attempted again to contact the Applicant on his nominated telephone number and a message was left explaining that the conciliation was not able to proceed as he was unable to be contacted.

[7] On 28 July 2020, the Commission sent correspondence to the Applicant’s nominated email address explaining that the conciliation of 27 July 2020 was not able to proceed as he was unable to be contacted. The correspondence advised that if the Applicant wished to proceed to a further conciliation, he would need to advise the Commission of his request within two working days and if no response was received the matter would be referred to a Member of the Commission for programming.

[8] As no response was received, the matter was referred to me for determination of the application.

[9] On 10 August 2020, my chambers sent correspondence to the Applicant at his nominated email address, which included the history of the Applicant’s non-attendance at Commission proceedings, the Commission’s unsuccessful attempts to contact the Applicant, the Applicant’s failure to communicate with the Commission and the following:

“[…]

Accordingly, we understand that you do not intend to continue with your application for unfair dismissal.

What do you need to do now?

The Commission directs that:

1. By no later than 4pm on Wednesday, 12 August 2020, you are directed to advise the Commission:

a) Whether you wish to proceed with this matter; and

b) If so, the reason(s) for your non-attendance at the conciliation of 27 July 2020, with evidence (if any) in support of those reason(s).

2. By 4pm on Friday, 14 August 2020, the Respondent may make any application or submissions it wishes to make in response.

If we do not hear from you by 4pm on Wednesday, 12 August 2020, your application will be dismissed pursuant to s.587 of the Fair Work Act 2009 (Cth).

If you have any questions, please contact me.

[10] Also on 10 August 2020, my Associate attempted to contact the Applicant at his nominated telephone number to notify him of the correspondence and the importance of providing a response. There was no answer and a voicemail message was left.

[11] No response (by email or telephone) was received from the Applicant by the stipulated time and date.

Whether to dismiss the application

[12] In light of the Applicant’s failure to comply with directions of the Commission and failure to respond, it is open to the Commission to decide whether to exercise its discretion to dismiss the application for want of prosecution pursuant to s.587 of the Act.

“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.”

[13] Though s.587 of the Act does not limit the grounds on which the Commission can, on its own motion (s.587(3)), dismiss an application this discretion should be exercised with caution (though there is some commentary that goes further and suggests it should also only be used “sparingly”, which is a different notion altogether). 1

[14] Section 587 of the Act affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act. 2

[15] In Sayer v Melsteel, 3the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed toprosecute their case. The Full Bench noted (relevantly):

“When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent's case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent's case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner's decision is consistent with that approach.”

[16] The Full Bench in Viavattene v Health Care Australia 4 commented on the circumstances where an applicant evinces “an unwillingness to participate in proceedings”, and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:

“[...] 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).”

[17] The Commission is not required to hold a hearing except as provided by the Act (s.593). In the context of an unfair dismissal application, the Commission must not hold a hearing unless it considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter (s.399).

[18] In the circumstances now before me, the Applicant has not complied with the directions of the Commission in relation to his application, has provided no explanation for his failure to comply and has not sought any dispensation. The Applicant has not responded to numerous attempts made by the Commission to contact him regarding his application and has made no effort to communicate or engage with the Commission at all.

[19] The Employer has provided a response to the Applicant’s claims by way of its Form F3 – Employer’s response filed on 7 July 2020. The Employer’s position is that the Applicant was dismissed due to his poor performance and poor attendance record. The Employer, on the face of its claims, has “a defence of substance” against the claims, or at least “a defence to the action”.

Conclusion

[20] I exercise my discretion in this regard in the knowledge that the Applicant has failed to prosecute his claim despite being afforded opportunity to do so and the Employer’s materials lodged indicate, even if at the prima facie level, a defence against the claims as made. Accordingly, the application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   See Resta v Myer Pty Ltd [2013] FWC 7080 at 39.

 2   See Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33.

 3   [2011] FWAFB 7498 at [16]-[17].

 4   [2013] FWCFB 2532 at [39].