Wayne Richard Clark v Urban Resources Pty Ltd
[2024] FWC 1477
•6 JUNE 2024
| [2024] FWC 1477 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Wayne Richard Clark
v
Urban Resources Pty Ltd
(C2024/2203)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 6 JUNE 2024 |
Application to deal with contraventions involving dismissal
Issue and outcome
On 5 April 2024, Mr Wayne Richard Clarke made a general protections application involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Respondent to this application is Urban Resources Pty Ltd (the Respondent). The matter was allocated to Chambers on 30 April 2024.
The Applicant had been dismissed on 13 November 2023. Therefore, the Respondent raised the jurisdictional objection that the Applicant’s general protections application involving dismissal had been lodged outside of the statutory period. Further, the Respondent pressed that it was not the former employer of the Applicant and that the Applicant had, at all material times, been employed by Zenith Executive Search Pty Ltd (Zenith).
The matter was programmed for mention for the purpose of explaining to the parties the jurisdictional objections raised by the Respondent and the implications those objections had for the programming of the matter.
On 3 May 2024, the mention was conducted and the parties were informed that the matter would proceed to hearing regarding the objection that the Applicant had not been dismissed by the Respondent as he was not an employee of the Respondent. On that same day directions were issued for the filing of materials with the Applicant’s materials due on 10 May 2024. The Applicant did not file materials in compliance with the directions (First Directions).
Chambers emailed the parties on Monday, 13 May 2024, advising the parties of the Applicant’s non-compliance with the First Directions and requiring the Applicant to explain his non-compliance and seek an extension of time in which to provide his response (accompanied with reasons), by Tuesday, 14 May 2024.
The Applicant replied to Chambers’ email dated 13 May 2024 on that same date, setting out a request for more time as he did not understand what he was being asked for and that he had already handed all documents in relation to his case. This is notwithstanding the mention, where it had been explained to the Applicant that the Respondent argued that it was not his former employer and had therefore not dismissed him, and therefore the Applicant was to file materials that supported his argument that the Respondent was his employer.
On 14 May 2024, Chambers emailed the parties and directed them that the First Directions stood and that given the Applicant would have the opportunity to submit his materials in reply to the Respondent’s materials on 24 May 2024, an extension of time would not be permitted (Second Directions). Further, the parties were advised that if the Applicant was unclear what was meant by the email dated 14 May 2024, he was to telephone Chambers directly for assistance, by no later than 14:00hrs on 15 May 2024.
The Applicant called Chambers on 14 May 2024 requesting more information in relation to his case.
On 16 May 2024, the Respondent filed its submissions and materials in compliance with the First Directions. Those submissions outlined that the Applicant had never been an employee of the Respondent and that the Applicant had been placed with the Respondent pursuant to a labour hire agreement between the Respondent and Zenith.[1] A copy of the labour hire agreement between the Respondent and Zenith was provided, as was a copy of the Applicant’s employment contract with Zenith. The Respondent submitted that as the Applicant was never its employee, it had therefore not dismissed him.
On 27 May 2024, Chambers emailed the parties and informed them that Chambers had not received correspondence from the Applicant in respect of the Second Directions. The Applicant’s materials had been due to be filed on 24 May 2024. The Applicant was directed to write to Chambers and explain his non-compliance with the Second Directions and to seek an extension of time in which to file his materials (Third Directions).
On 29 May 2024, Chambers emailed the parties advising that the Applicant had again been non-compliant with the directions, specifically, the Third Directions. The parties were informed that the Commission would now consider the dismissal of the Applicant’s application under s 587 of the Act, and that parties were to submit materials regarding this by Friday, 31 May 2024 (Fourth Directions). Neither party filed materials in response to the Fourth Directions, with the Respondent informing the Commission that it relied upon the materials it had filed to date.
In the absence of any objection from the parties and in circumstances where the Applicant had been unresponsive to the Commission’s directions and correspondence since 14 May 2024, I considered it appropriate to determine the matter on the papers.
For the reasons that follow, I have decided to dismiss the Applicant’s application pursuant to s 587 of the Act. An Order[2] to that effect issues concurrently with this decision.
Consideration
The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states:
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 section 527F 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.
Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
Since the matter was allocated to Chambers, the Applicant has not advanced his case in light of the Respondent’s jurisdictional objections. The Commission’s resources have been diverted to assist the Applicant to undertake the simple task of complying with the First Directions and thereafter the subsequent directions that issued. Whilst it would appear that the Applicant’s voicemail to Chambers on 14 May 2024 was not responded to, it remains that a mention had been called on 3 May 2024 to carefully detail what was required of the Applicant in respect of the Respondent’s argument that it was not his employer – and the implications of this. Thereafter, on 16 May 2024, the Respondent provided its materials which clearly outlined its case. The Applicant was provided with the opportunity to provide materials in reply to the argument that the Respondent was not his former employer. Further, the Applicant was provided with opportunity to provide information on why his application should not be dismissed. No further correspondence or contact has been made by the Applicant since 14 May 2024, notwithstanding the correspondence from Chambers.
The Applicant’s non-compliance with the directions and thereafter his lack of response to the potential dismissal of his application, have led me to decide to dismiss the application for want of prosecution pursuant to s 587(3)(a) of the Act.
Conclusion
The application is dismissed. An Order to that effect will issue with this decision.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] Respondent’s Outline of Submissions – Jurisdictional Objection, [6].
[2] PR775736.
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