Will Brown v K-Randa Pty Ltd Summary

[2023] FWC 1656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Will Brown
v

K-Randa Pty Ltd

(U2023/3816)

DEPUTY PRESIDENT LAKE

BRISBANE, 19 JULY 2023

Application for an unfair dismissal remedy – failure to prosecute – s.587 – application dismissed.

Will Brown (the Applicant) was employed by K-Randa Pty Ltd (the Respondent) on 7 October 2020 until he was dismissed on 14 February 2023. On 3 May 2023, the Applicant made an application seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A Conciliation was listed on 13 June 2023 before the matter was allocated to me. The Conciliator attempted to contact the Applicant on 3 occasions at 9.15am, 9.25 and 9.45am with no response. The conciliation did not take place. The matter was then allocated to me for determination.

The matter was listed for Directions Conference on 19 June 2023 at 2:00pm. My Associate attempted to contact the Applicant at 12:00pm, 12:10pm and 12:15pm with the number provided in the Form F2 along with the number which the Applicant provided in an email. My Associate sent an email providing the Teams link to join the conference. The Applicant did not respond.

On 28 June 2023, an email was sent by my Associate that the Application may be dismissed under s.587 of the Fair Work Act 2009 (Cth) resulting from non-compliance with Directions. The Applicant was given an opportunity to provide reasons for the delay.

On 6 July 2023, another email was sent providing an additional opportunity for the Applicant to respond regarding why he had not responded to any of the Commission’s correspondence to date. The Applicant was warned again that the matter may be discontinued under s.587 of the Fair Work Act 2009 (Cth) if he did not respond.

The Applicant has not responded to any correspondence to date.

Section 587 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, or an application under s527F 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.”

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.

I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Will Brown lodged an application for unfair dismissal against his former employer, K-Randa Pty Ltd, under section 394 of the Fair Work Act 2009. The application was made following his dismissal on 14 February 2023, after being employed since 7 October 2020. The Fair Work Commission (FWC) was tasked with determining whether the dismissal was unfair. The matter was initially scheduled for conciliation on 13 June 2023, but no conciliation took place as the Applicant failed to respond to multiple attempts by the Conciliator to contact him. Despite subsequent attempts to contact the Applicant for a Directions Conference and warning emails about potential dismissal of the application for non-compliance with Directions, the Applicant did not respond.

The legal issues before the FWC included whether the dismissal was unfair under the Act and whether the application could be dismissed for want of prosecution under section 587 of the Act. The key issue that the FWC had to decide was whether the Applicant's failure to engage with the Commission’s attempts to contact him and respond to correspondence justified dismissing his application for unfair dismissal. The FWC considered the provisions of section 587(3)(a) of the Act, which allow the Commission to dismiss an application on its own initiative if it deems appropriate.

The FWC found that the Applicant's failure to respond to multiple attempts to contact him and provide reasons for his non-engagement resulted in the application being dismissed for want of prosecution. The Deputy President concluded that the Applicant's non-compliance with the Commission's communications and lack of response to warnings justified the dismissal of the application under section 587(3)(a) of the Act. The decision was made without the need to determine the merits of the unfair dismissal claim itself.

In conclusion, the FWC dismissed Will Brown's application for unfair dismissal against K-Randa Pty Ltd for want of prosecution. The decision was based on the Applicant's failure to engage with the Commission and respond to multiple attempts to contact him and provide reasons for his non-participation in the proceedings.

Will Brown v K-Randa Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established