Timothy Joseph v Totally Stripped

[2020] FWC 4951

[2020] FWC 4951

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Joseph
v
Totally Stripped
(U2019/13983)

COMMISSIONER BOOTH BRISBANE, 15 SEPTEMBER 2020

Application for an unfair dismissal remedy - application dismissed under s.587.

[1] On 12 December 2019, Mr Timothy Joseph (the Applicant) applied to the Commission under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Totally Stripped (the Respondent). The Applicant stated he was employed by the Respondent from 7 September 2015 until his dismissal on 26 November 2019.

[2] The matter was listed for conciliation conference before a Fair Work Commission staff conciliator on 24 January 2020. The staff conciliator made a number of attempts to dial the Respondent for the conciliation, but was unsuccessful. The Commission file notes that the conciliator spoke to The conciliation was therefore unable to take place.

[3] On 22 June 2020, the Respondent requested a second conciliation conference. The Applicant did not contact the Commission in relation to this request and the matter was therefore not set down for a second conciliation conference.

[4] The matter was then referred to my Chambers for determination. I issued directions for filing of material on 8 July 2020. The Applicant was directed to file materials in support of his substantive application as well as any witness statements or documentary material by no later than 30 July 2020, and was directed to file material in relation to the Respondent’s jurisdictional objection to the application by 13 August 2020. June 2020. I also issued a Notice of Listing for a mention and conference to be held on 23 July 2020. The parties were asked to confirm their contact details to Chambers, for the purposes of the mention and conference, by 20 July 2020.

[5] On 23 July 2020, my Associate attempted to contact Mr McKee by telephone three times to connect him to the conference and left a voice mail requesting an urgent return call. An email requesting the Applicant make himself available for the conference was also sent.

[6] Further email correspondence was sent on 23 July 2020 noting the Applicant did not attend the conference, and directing the Applicant to provide any response any response regarding whether he still seeks to progress his application, in writing to Chambers by 27 July 2020. Mr McKee provided no response.

[7] Further correspondence was sent by email on 31 August 2020 advising that in light of Mr McKee’s failure to attend the conference and provide any response to correspondence from Chambers on 23 July 2020, I was now considering dismissing his application. Mr McKee was invited to provide any reasons why the application should not be dismissed, in writing to Chambers and copied to the Respondent by 5 August 2020. Mr McKee did not provide any response or contact Chambers in any way.

[8] A final telephone call was made to Mr McKee on the morning of 26 August 2020 requesting Mr McKee urgently contact Chambers and advising his application was at risk of being dismissed.

[9] No further correspondence or telephone contact has been received from the Applicant to date.

[10] 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 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.”

[11] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[12] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 1 Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.2

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr McKee has failed to respond to various correspondence from Chambers, and has failed to file any material in the matter beyond his initial Form F2. Mr McKee has failed to provide any reasonable explanation to the Commission for his failure to comply with directions. Mr McKee has shown no willingness to prosecute his case and taken no steps to do so.

[14] In L. Sayer v Melsteel Pty Ltd, 3 the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[15] In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution. An Order to this effect will issue accordingly.

COMMISSIONER

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 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

 2   Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

 3   [2011] FWAFB 7498 at [19].