1 Fair Work Act 2009 s.365—General protections Wayne Richard Clark v Zenith Executive Search Pty Ltd (C2024/2202) COMMISSIONER LIM PERTH, 13 JUNE 2024 Application to deal with contraventions involving dismissal – section 587 – application dismissed [1] On 5 April 2024, Mr Wayne Clark made an application to the Fair Work Commission pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act). Mr Clark’s former employer is Zenith Executive Search Pty Ltd (the Respondent). [2] The Respondent objects to Mr Clark’s application on the basis it has been made approximately five months past the 21-day statutory filing deadline and that Mr Clark was not dismissed. [3] The matter was programmed for hearing to determine the out of time issue first. However, the Applicant failed to comply with the directions issued and as a consequence the Applicant was placed on notice that I was considering dismissing his application pursuant to s 587 of the Act. [4] In the absence of any objections from the parties, I considered it appropriate to determine the matter on the papers. For the reasons that follow, I have decided to dismiss Mr Clark’s application. Background [5] Mr Clark’s application was listed for case management conference on 5 June 2024. The matter was subsequently programmed for hearing to determine whether an extension of time should be granted to Mr Clark pursuant to s 366(2) of the Act. [6] A hearing was listed for 17 June 2024. A notice of listing and directions for the filing of materials were issued that same day. Mr Clark was required to file his materials by 4:00pm AWST, 10 June 2024. Mr Clark did not comply with this direction. [7] On 11 June 2024, Chambers wrote to the parties regarding Mr Clark’s non-compliance. Chambers directed that the outstanding material be provided as soon as possible and by no later [2024] FWC 1539 DECISION [2024] FWC 1539 2 than 2:00pm AWST, 12 June 2024, along with the reason for the delay. Mr Clark did not respond to this email. [8] On 12 June 2024 at 4:17pm AWST, Chambers wrote to the parties to confirm that there had been no contact from Mr Clark. Chambers informed the parties that I was considering dismissing Mr Clark’s application pursuant to s 587 for failure to comply with directions and on the basis that Mr Clark is not properly pursuing his application. The parties were given until 4:00pm AWST, 13 June 2024 to provide any submissions on why the Commission should or should not dismiss Mr Clark’s application. [9] No further contact or communication has been received from Mr Clark. The Respondent has also not made any submissions for consideration. Consideration [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] In the decision of McLeod v Kulgera Trading Company Pty Ltd, the Vice President dismissed an application to deal with contraventions involving dismissal under s 365 of the Act, pursuant to the dismissal provision in s 587 of the Act.1 In doing so, the decision of Commissioner Gooley (as she then was) in Tomas v Symbion Health (Tomas) was relied upon and reference was made to the following passages regarding the operation of s 587: [57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons. [58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.2 [2024] FWC 1539 3 [12] While the decision of Tomas addressed an unfair dismissal application, the Vice President considered the reasoning applicable to an application under s 365 notwithstanding the limitation set out in s 587(2) of the Act. The decision of Tomas has been subsequently followed, and other decisions of this Commission have relied upon s 587 to dismiss applications brought under s 365.3 [13] In line with other decisions of this Commission, it is apparent that the words at the commencement of s 587(1), namely, ‘[w]ithout limiting when FWC may dismiss an application,’ make clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in ss 587(1)(a), (b) or (c). [14] I have decided to dismiss the Mr Clark’s application as he has demonstrated non- compliance with the Commission’s directions on two occasions. The Commission has the power to dismiss an application where there is an unreasonable or unexplained non-compliance on its own initiative.4 There is no legislative or common law requirement that the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings that they have initiated.5 [15] Accordingly, Mr Clark’s application is dismissed. An order to this effect will issue separately.6 COMMISSIONER Matter determined on the papers. Printed by authority of the Commonwealth Government Printer <PR775989> 1 [2014] FWC 2112. 2 [2011] FWA 5458, [57]–[58]. 3 See, e.g, Hawes v Plastic Planet Pty Ltd [2014] FWC 6457; Guest v Waddell Family Investments Pty Ltd [2014] FWC 4607. 4 Fair Work Act 2009 (Cth) s 587(3)(a). 5 Viavattene v Health Care Australia [2013] FWCFB 2532, [39]. 6 PR775990