Timothy Durward v Woolworths

[2022] FWC 1033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Timothy Durward
v

Woolworths

(U2021/11366)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 MAY 2022

Application for an unfair dismissal remedy

On the 8^th of December 2021, Timothy Durward (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, Woolworths.

A conciliation before a Commission staff conciliator was listed for the matter on the 18^th of January 2022. The applicant did not attend the conciliation.

My chambers sent correspondence to the applicant on the 10^th of February 2022, directing him to advise the Fair Work Commission by 4:00pm on the 17^th of February whether he wishes to continue his application. However, we received no response from the applicant by that time.

On the 18^th of February 2022, my chambers sent further correspondence to the applicant, directing her to provide a response by 5:00pm on the 23^rd of February 2022. He was advised that in the absence of a reply, her application may be dismissed.

To date, the applicant has not responded to any of the Commission’s correspondence.

Section 587 of the Act provides:

“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.”

The words, “[w]ithout 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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Timothy Durward lodged an application for unfair dismissal against Woolworths with the Fair Work Commission (FWC). The Commission had attempted to conciliate the dispute but the applicant failed to attend the conciliation and did not respond to subsequent correspondence from the Commission. The applicant’s failure to attend the conciliation and his silence in response to the Commission’s correspondence raised questions about the merits of his application and the prospects of it succeeding. The FWC determined that the application was to be dismissed for want of prosecution.
The legal issue in this matter was whether the FWC had jurisdiction to dismiss the applicant's application for want of prosecution under s.587(3)(a) of the Fair Work Act 2009. The relevant provision states that the FWC may dismiss an application "on its own initiative" if it is satisfied that the application should be dismissed. The FWC considered the relevant section of the Act and decided that it had jurisdiction to dismiss the application on its own initiative. The FWC also considered the words “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act. The FWC held that the words 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). The FWC found that the applicant's failure to attend the conciliation and his silence in response to the Commission's correspondence provided sufficient grounds for the FWC to dismiss the application on its own initiative.
In dismissing the application, the FWC found that the applicant's failure to attend the conciliation and his silence in response to the Commission's correspondence provided sufficient grounds for the FWC to dismiss the application on its own initiative. The FWC found that the applicant's conduct demonstrated a lack of commitment to the proceedings and a disregard for the Commission's processes. The FWC held that the application had no reasonable prospects of success and that it was appropriate to dismiss the application for want of prosecution.
The FWC dismissed the applicant's application for unfair dismissal against Woolworths for want of prosecution. The FWC found that the applicant's failure to attend the conciliation and his silence in response to the Commission's correspondence provided sufficient grounds for the FWC to dismiss the application on its own initiative. The FWC held that the application had no reasonable prospects of success and that it was appropriate to dismiss the application for want of prosecution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established