Thomas Crawley v Weave Youth & Community Services Inc
[2023] FWC 735
•28 MARCH 2023
| [2023] FWC 735 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Thomas Crawley
v
Weave Youth & Community Services Inc
(U2023/168)
| DEPUTY PRESIDENT CROSS | SYDNEY, 28 MARCH 2023 |
Application for an unfair dismissal remedy
Mr Thomas Crawley (the Applicant) was employed by Weave Youth & Community Services Inc (the Respondent) from 9 April 2021 to his dismissal on 16 December 2022. The Applicant filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 6 January 2023 (the Application).
Relevant Facts and Directions
On 2 March 2023, my Chambers issued a Notice of Listing for a Member Assisted Conciliation and Directions Hearing (first Directions Hearing), for 6 March 2023. The notice of listing contained draft directions for the filing and materials in this matter which was to be discussed at the directions hearing.
On 6 March 2023, the Directions Hearing was held. The Applicant failed to attend. A Hearing was listed for 21 April 2023 and the Draft Directions were issued in final form in a Notice of Listing.
On 22 March 2023, we received the following email from the Respondent querying the Applicants non-compliance with the directions:
Dear Chambers
We refer to the above matter and the directions dated 6 March 2023 (Directions).
In accordance with the Directions, we note that the Applicant’s evidence was due by 4 pm, 21 March 2023.
We have made a number of attempts to contact the Applicant but have not had any reply. As we have not received any filed material, can you please confirm whether material has been filed with the Commission?
The Applicant has been copied into this email.
Kind regards
Nathan Martin
Law Graduate
In response to the Applicants non-compliance with the directions, my Chambers sent the following email on 22 March 2023:
Dear Parties,
I note the Applicant has not complied with Direction 1 of the Commission’s Directions issued on 6 March 2023 (Listing Directions). Please see below Direction:
1.Thomas Crawley (the Applicant) is directed to file with the Fair Work Commission and serve on Weave Youth & Community Services Inc (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 21 March 2023.
The Applicant is required to email Chambers by 4:00pm on 23 March 2023 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
Please note that any materials must be filed with the Commission via email to this address, being [email protected].
On 24 March 2023, having not received a response from the Applicant to the above email, my Chambers sent the following correspondence to the parties:
Dear Parties,
Chambers refers to the above matter and notes that a response has not been received to the email below.
The Applicant, Thomas Crawley, is directed to provide his response by no later than 4:00pm on Monday, 27 March 2023. If no response is received by this time, the matter will be dismissed for want of prosecution.
On 28 March 2023, my Chambers attempted to call the Applicant to follow up whether they had any submissions they wished to make as well as to inquire about whether they wished to proceed with the matter. The Applicant did not answer.
Relevant Legislation
Section 587 of the Act provides:
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
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).
In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
DEPUTY PRESIDENT
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