Thomas James v Gainsleet Pty Ltd
[2023] FWC 1858
•14 AUGUST 2023
| [2023] FWC 1858 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Thomas James
v
Gainsleet Pty Ltd
(C2022/7441)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 14 AUGUST 2023 |
Application to deal with contraventions involving dismissal – application dismissed.
Mr Thomas James made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). Mr James alleges he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
For the reasons that follow, the application is dismissed for an unreasonable failure to comply with directions.
Context
The application was lodged on 8 November 2022 alongside four other applications made by Mr James pursuant to s 365 of the Act against different employers. The only contact details provided by Mr James was the postal address for “Capricornia Correctional Centre” in Queensland. Accordingly, the Commission proceeded to correspond with Mr James by way of registered express post to the correctional facility.
The respondent, Gainsleet Pty Ltd, responded to the application on 16 November 2023. The respondent objected to the application on the basis that the application was out of time as the applicant’s employment was terminated on 13 October 2020. The respondent also asserted that it had provided the applicant with a separation certificate at the time of the termination and provided a copy of the certificate to the Commission.
From 16 November 2022 to 6 January 2023, several attempts were made by the Commission to list the matter for a telephone conference with Mr James, in the correctional facility, and the respondent. The details of these exchanges are unnecessary to repeat, suffice it to note that the conditions required by the correctional facility to facilitate a telephone conference convened by the Commission and attended by the respondent were unable to be met.
On 9 January 2023, the respondent provided the Commission with a copy of a letter it had received from Mr James, indicating that he intended to withdraw his application. The Commission received no notification from Mr James (a) of any intention to withdraw the application, or (b) to otherwise confirm he provided the respondent with that correspondence. Accordingly, the Commission proceeded to deal with the application.
The Commission sent directions dated 8 February 2023 to the respondent by email on 9 February 2023 and to Mr James by express post on 9 February 2023. The directions were issued for the purposes of determining whether the Commission should allow Mr James further time to make his application, as Mr James had identified that his application was lodged outside the 21-day statutory timeframe for applications made under s 365 of the Act.[1] Mr James was required to file in the Commission an outline of argument, statement of evidence and a document list in support of his application for an extension of time. Mr James was also invited to settle the dispute as the remedy he sought was simply a “letter from employer regarding dismissal reasons why I had been dismissed.”[2]
Mr James failed to comply with the directions dated 8 February 2023, and otherwise made no contact with the Commission.
On 5 May 2023, further directions were issued in response to Mr James’ non-compliance with the 8 February 2023 directions, and because Mr James had not contacted the Commission in several months. The further directions stated, relevantly, as follows:
“An unreasonable failure to comply with directions provides a basis for the Commission to dismiss the general protections application pursuant to s 587 of the Fair Work Act 2009 (Cth).
The Deputy President’s preliminary view is that the application should be dismissed…”
Mr James was directed to advise the Commission whether he wished to continue or discontinue his application by 19 May 2023. In the event that Mr James sought to pursue his application, he was required to provide any materials explaining why the Commission should not dismiss his application for a failure to comply with the directions dated 8 February 2023.
Mr James did not comply with the 5 May 2023 directions, and has otherwise not communicated with the Commission at all.
Consideration
Section 587 of the Act sets out when the Commission may dismiss an application. It provides:
(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.
…
(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.
The Commission is not limited in the ways in which it may dismiss an application under s 587(1). However, in the context of an application under s 365, the Commission must not dismiss the application for a reason prohibited by s 587(2).
For applications made under s 365 of the Act, a basis to dismiss an application pursuant to s 587 of the Act may arise where there has been a failure to comply with a direction, attend a hearing, comply with the rules, or take steps to “prosecute” an application in the sense that there is a delay attributable to a failure on the part of an applicant.[3]
Where the whole of the circumstances leads to a conclusion that there has been an inexcusable or unreasonable delay in the application, this may justify the exercise of the discretion to dismiss an application. This may involve consideration as to the blame attributable to the applicant, prejudice to and complaint of the respondent, and involves a balancing of the Commission’s overarching considerations and the objectives of the Act.[4]
The Commission issued directions dated 8 February 2023 and 5 May 2023. I am satisfied that Mr James was properly served with the directions as both were provided to his preferred address via registered express post.
The directions dated 5 May 2023 put Mr James on notice that his application was at risk of being dismissed for a failure to comply with the directions dated 8 February 2023. Mr James has not communicated with the Commission in any capacity since the directions were issued and so failed to comply with both sets of directions. I am satisfied that the applicant has not provided any explanation for his failure to comply with the directions.
I consider the following matters weigh in favour of the exercise of my discretion to dismiss the application.
First, the Commission is required to perform its functions in a manner that is “quick.”[5] This is particularly important in general protections matters where the Commission is exercising an essentially preliminary jurisdiction.[6] The application was filed over nine months ago and no substantial progress has been made with respect to the application. The delay is wholly attributable to the Mr James’ failure to communicate with the Commission, including his failure to comply with the directions dated 8 February 2023 and 5 May 2023.
Second, Mr James has not advised the Commission of any change in his contact details such that there is a reasonable basis to assume that he has not received the Commission’s correspondence.
Third, Mr James was granted a waiver of the application fee and has not, on the Commission’s records, retained a representative in any capacity. It therefore follows that the time and cost incurred by the applicant in making this application has been minimal.
Fourth, Mr James has not been in contact with the Commission since the application was filed. Mr James has not indicated any intention to press his application in the Commission.
In the circumstances, I consider it appropriate to exercise my discretion to dismiss the application in accordance with the general power in s 587(1) of the Act. I do so on the basis that Mr James has unreasonably failed to comply with directions of the Commission.
Conclusion and disposition
Having regard to the above matters and the conclusions reached, the application is dismissed.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) s 366(1)
[2] Form F8 at 2.1
[3] Bosworth v Coles Supermarket Beechboro T/A Coles Supermarket Beechboro[2022] FWCFB 153 at [48]
[4] Fair Work Act 2009 (Cth) ss 577-578 as well as the objectives of the Act and Parts of the Act
[5] Fair Work Act 2009 (Cth) s 577(b)
[6] Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628 at [90]
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