Stephen Faithfull v SPAR Australia Limited

[2024] FWC 2939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stephen Faithfull
v

SPAR Australia Limited

(U2024/7070)

DEPUTY PRESIDENT LAKE

BRISBANE, 23 OCTOBER 2024

Application for an unfair dismissal remedy – failure to prosecute – s.587 – application dismissed.

On 19 June 2024, Mr Stephen Faithfull (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with SPAR Australia Limited (the Respondent).

The matter was listed for staff conciliation on 29 July 2024. On the morning of 29 July 2024, the Commission received an email from the Applicant’s representative from the Shop, Distributive and Allied Employees' Association (SDA) requesting an adjournment of the conciliation.

The matter was adjourned and listed for staff conciliation on 15 August 2024. Despite the staff conciliator and the Applicant’s representative both attempting to contact the Applicant several times, the Applicant failed to attend the conciliation. I note the Applicant does not appear to be represented by the SDA anymore.

The matter was again listed for staff conciliation on 18 September 2024. The Applicant failed to attend the conciliation. The Respondent requested that the matter be referred to a Member.

The matter was allocated to my Chambers on 20 September 2024. On 23 September 2024, I listed the matter for Member-Assisted Conciliation on 27 September 2024 and issued Directions to the parties. The Notice of Listing stated:

The Deputy President provides the parties a final opportunity to resolve the matter before arbitration through a hearing. This means the matter resolves privately and the parties can move on. Attendance is mandatory.

Paragraph 12 of the Directions noted:

If the Applicant fails to comply with these requirements, the Deputy President may determine whether to dismiss the application under s.399A of the Act if the Respondent makes an application or will dismiss the matter under s.587 of the Act on his own initiative for the Applicant’s failure to prosecute their matter.

On 27 September 2024, the Applicant failed to attend the Member-Assisted Conciliation. My Chambers called the Applicant twice. On the second call, the Applicant answered and advised that he could not attend the conciliation as he had an appointment. The Applicant was asked whether he wished to discontinue the matter. The Applicant advised that he did not. The Applicant was advised that any requests for adjournments needed to be made by writing to my Chambers. My Chambers has received no such requests.

The Applicant’s material was due on 11 October 2024. The Applicant failed to file any submissions and no request for an extension was received.

On 15 October 2024, my Chambers emailed the Applicant the following:

Dear Mr Faithfull

You were required to file your submissions on 11 October 2024.
As you have not complied with the directions of filing your submissions on 11 October 2024, the Deputy President will move your matter to non-compliance and will consider dismissing your application under s.587 of the Act. Please provide reasons as to your non-compliance, along with the filing of your submission by close of business, 17 October 2024.
The matter will be listed for non-compliance on 22 October 2024. This will be vacated if you comply with the amended Directions.

The Applicant failed to provide any submissions by the close of business, 17 October 2024.

On 21 October 2024, my Chambers emailed the Applicant confirming that the matter would be listed for a non-compliance conference on 22 October 2024. The Applicant was again advised that he needed to provide reasons for non-compliance during this conference and that his application may be dismissed.

The Applicant emailed my Chambers on 21 October 2024, advising as follows:

I don't have the resources to pay someone to complete the required submission that is why I've have not completed.

I note that parties are not required to be legally represented in Commission matters. Section 577 of the Act provides that the Commission is obliged to perform its functions in manner that is:

a)        Fair and just
b)        Quick, informal and avoids unnecessary technicalities
c)        Open and transparent
d)        Promotes harmonious and cooperative workplace relations.

Accordingly, I do not accept the Applicant’s reason for non-compliance with the Directions. The Commission is intended to be an informal jurisdiction. It was not required for the Applicant to pay someone to write the submissions for him. The Applicant was given Directions on 23 September 2024 advising that he would be required to file submissions on 11 October 2024 if the conciliation was unsuccessful. The Applicant was then given a further extension until 17 October 2024.

I am satisfied that the Applicant received the multiple emails which were sent by my Chambers, given that the Applicant responded by email on 21 October 2024 to explain that he has not been able to pay anyone to complete his submissions.

The non-compliance conference was held on 22 October 2024. The Applicant did not attend the conference. My Chambers emailed the Applicant and attempted to call the Applicant three times.

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 s527F 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; or
(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

The words, “without limiting when FWC may dismiss an application” under s.587(1) of the Act establishes 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).

In the circumstances, given the Applicant’s repeated failure to attend conciliations, failure to provide any submissions, and failure to attend the non-compliance conference, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Stephen Faithfull versus SPAR Australia Limited, the applicant, Mr Faithfull, sought a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. The application was dismissed due to the applicant's failure to prosecute the matter, leading to the dismissal of his application under section 587 of the Act. Mr Faithfull had been employed by SPAR Australia Limited and alleged that he was unfairly dismissed. The case was initially scheduled for conciliation, but Mr Faithfull failed to attend the conciliation hearings on multiple occasions despite multiple reminders and extensions. His failure to comply with the Commission's directions, including providing necessary submissions and attending mandatory conferences, ultimately led to the dismissal of his application.

The legal issues before the Commission involved whether Mr Faithfull's application could be dismissed due to his non-compliance with the Commission's directions and procedural requirements. The Commission had to consider if Mr Faithfull's failure to attend conciliation, provide submissions, and participate in non-compliance proceedings warranted the dismissal of his application under section 587 of the Fair Work Act 2009. The applicant argued that he could not afford to hire someone to prepare his submissions, but the Commission found this explanation insufficient given the informal and accessible nature of the Commission's proceedings.

The Commission found that the applicant's repeated non-attendance at mandatory conciliation and non-compliance conferences, along with his failure to submit required documentation, justified the dismissal of his application. The Deputy President emphasised that the Commission operates in a manner that is quick, informal, and avoids unnecessary technicalities, and it was not necessary for the applicant to hire legal assistance to proceed with his application. The applicant's inability to pay for such assistance did not excuse his failure to comply with the Commission's procedural requirements. Consequently, the application was dismissed for want of prosecution under section 587(3)(a) of the Act.

The Commission ordered the dismissal of Mr Faithfull's application for unfair dismissal. The Deputy President concluded that the applicant's persistent failure to comply with the Commission's directions and procedural requirements, despite multiple opportunities to do so, warranted the dismissal of the application. This decision underscores the importance of adhering to the Commission's processes and deadlines, and highlights the consequences of non-compliance in Commission proceedings.

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