1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Mr Bradley Horne v Teasdale Tyres Pty Ltd (C2023/4091) DEPUTY PRESIDENT WRIGHT SYDNEY, 22 AUGUST 2023 Application to deal with contraventions involving dismissal - application dismissed for want of prosecution [1] On 10 July 2023, Mr Bradley Horne (Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that he had been dismissed from her employment with Teasdale Tyres Pty Ltd (Respondent) in contravention of Part 3-1 of the FW Act. [2] On 31 July 2023, the Respondent filed a Form F8A – Response to general protections application (the response) which raised a jurisdictional objection, namely that the Applicant was not dismissed within the meaning of s.386 of the FW Act. [3] The matter was listed for a Mention/Directions conference before me on 7 August 2023. The Applicant did not appear at this conference, but his representative from Employee Dismissals appeared on his behalf. His representative had not been able to obtain instructions from the Applicant prior to this conference. After this conference my Chambers issued Directions. [4] The Applicant failed to file and serve material as required by the directions, by no later than 4:00pm on 14 August 2023. [5] At 4:50pm on 14 August 2023 my Chambers sent an email to the parties in the following terms: Dear parties, I refer to the above matter and the below directions. The Applicant did not attend the directions conference conducted on 7 August 2023, and now has failed to file materials as directed. [2023] FWC 2099 DECISION [2023] FWC 2099 2 The Applicant is directed to advise whether he wishes to discontinue the matter by no later than 4:00pm tomorrow, 15 August 2023. In the absence of a response, the matter will be listed for hearing regarding dismissing the application later this week. [6] At 5:31pm on 14 August 2023 the Applicant sent an email to my Chambers indicating he would like to continue the matter. [7] At 2:11pm on 15 August 2023 my Chambers sent an email to the Applicant in the following terms: Dear Mr Horne, If you wish to continue the matter, you are directed to to file the following material in the Commission, and serve a copy on the Respondent, by no later than 4.00pm on Thursday, 17 August 2023: • An outline of submissions in relation to jurisdiction of the application addressing the Respondent’s objection that the Applicant was not terminated on the employer’s initiative (s.386(1)(a) Fair Work Act 2009); and • A witness statement for the Applicant and each of the witnesses the Applicant intends to call at the jurisdiction hearing, including any documentary material upon which the Applicant intends to rely. The matter will be listed for a Mention/Directions conference at 2:00pm on Tuesday, 22 August 2023. A Notice of Listing with further details will follow shortly. If your material is filed, the topic of the conference will be regarding the filing of the Respondent’s material. If you do not file your material, the conference will convert into a hearing regarding potential dismissal of the matter. [8] On 17 August 2023 the Applicant forwarded an email to Chambers which appeared to be an email exchange between himself and his representative. [9] On 21 August 2023 the Applicant’s representative filed a Form F54 – Notice that a lawyer or paid agent has ceased to act for a person. The Applicant’s representative indicated that they had not received instructions from the Applicant in respect of further conduct of the matter. [10] At 11:10am on 22 August 2023, Ms Megan Skipp, Accounts Administrator at the Respondent, sent an email to my Chambers enquiring as to whether the matter would proceed as listed considering the Form F54. [11] At 11:14am on 22 August 2023 my Chambers responded to Ms Skipp, copying the Applicant, advising that the matter would proceed as listed. [2023] FWC 2099 3 [12] The Applicant did not make an appearance at the Mention/Directions conference on 22 August 2023, and did not answer a phone call to his mobile number listed in the application form. [13] At the Mention/Directions conference on 22 August 2023, the conference converted into a hearing regarding potential dismissal of the matter as foreshadowed in the email that my Chambers sent to the Applicant on 15 August 2023. [14] At the hearing I dismissed the application for want of prosecution pursuant to s.587(3)(a) of the FW Act. I now publish my reasons. [15] Section 587 of the FW Act provides as follows: 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 prospect 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. [16] The terms of s.587(1) make it clear that the circumstances that the Commission may dismiss an application are not limited to those set out in s.587(1)(a)-(c). [17] Section 587(2) does not permit me to dismiss an application under s. 365 on the ground that the application is frivolous or vexatious; or has no reasonable prospects of success. However, s. 587(2) does not prevent me from dismissing an application under s. 365 on other grounds. [18] I am satisfied that the Commission has taken reasonable and appropriate steps to inform the Applicant of the conference date, contact the Applicant on the date of the conference and inform the Applicant of the consequences of both not attending the hearing, filing materials and [2023] FWC 2099 4 not responding to email correspondence from my Chambers. The Applicant, through his failure to attend the hearing, file materials and respond to attempts to contact him by my Chambers has indicated by his inaction that he no longer wishes to pursue the application. [19] The Respondent supports the dismissal of the application. [20] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the FW Act. I order accordingly. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR765443>