What happened

Mr Hsiang-Ching Li filed an unfair dismissal application in the Fair Work Commission on 2 June 2020 under s.394 of the Fair Work Act 2009 ([1]). The Respondent, ASP Access Floors Pty Ltd, filed an Employers Response on 26 June 2020 opposing the application and contending that Mr Li had not been dismissed and that he was an employee of another company, ANG Links P/L ([3]).

The Commission listed a telephone conference on 29 June 2020. A Mandarin interpreter was provided so the Applicant could participate. At the conference the Commissioner noted uncertainty about whether the Applicant was a member of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and expressed the view that it would be more efficient for the Applicant to obtain union legal advice; the matter was stood over to allow that to occur ([4]). The Commission's Chambers then contacted the Applicant on 2 and 8 July 2020 to confirm whether he had contacted the CFMMEU; the Applicant did not respond to the first enquiry and later advised that the CFMMEU were not prepared to represent him at that stage ([5]–[6]). On 29 July 2020 the Applicant was referred to the Commission's Workplace Advice Service ([7]).

After several weeks the Commission wrote to the Applicant on 24 August 2020 and again on 1 September 2020 asking whether he wished to proceed with his application. The 1 September letter set a deadline of 4.00 pm on 8 September 2020, and warned that in the absence of a reply the application might be dismissed ([8]–[9]). The Applicant did not respond to either communication ([10]). The Commissioner, invoking the Commission's power under s.587 of the Fair Work Act 2009, dismissed the application for want of prosecution ([11]–[12]).

Why the court decided this way

The decision rests on process and statutory power rather than a determination of the merits of the underlying unfair dismissal claim. The Commission expressly relied on section 587 of the Fair Work Act 2009, which specifies circumstances in which the Commission may dismiss an application and confirms that the Commission may dismiss an application on its own initiative ([11]). Section 587(1) identifies several specific grounds (not made in accordance with the Act, frivolous or vexatious, no reasonable prospects of success), and s.587(3) permits dismissal on the Commission's own initiative.

The factual basis for exercising that power was the Applicant's failure to engage with directions and correspondence from the Commission. The record shows repeated attempts by the Commission to assist and to prompt the Applicant: provision of an interpreter and a conference ([4]); enquiries about union assistance ([5]–[6]); referral to the Workplace Advice Service ([7]); and explicit correspondence setting a deadline and warning of possible dismissal ([8]–[9]). The Applicant did not respond to the follow-up letters of 24 August and 1 September 2020 ([10]). Given these facts, the Commissioner concluded that the proceeding should not be allowed to sit dormant and that dismissal for want of prosecution was appropriate ([12]).

The Respondent's substantive contentions (that the Applicant had not been dismissed and was employed by ANG Links P/L) were recorded ([3]) but were not resolved. The decision does not address those merits issues because the procedural failure to prosecute terminated the proceeding.

Before and after state of the law

What the judgment explicitly relies upon is the statutory case-management power in s.587 of the Fair Work Act 2009. The judgment reproduces s.587 in full and treats it as the foundation for a dismissal where an applicant does not engage with the tribunal's procedural directions ([11]). The decision demonstrates application of that statutory provision to the typical procedural fact pattern of non-response.

This decision does not purport to change or develop novel legal doctrine. It applies existing statutory power to the facts. The "before" state is simply the statutory provision; the "after" state is the application of that provision to dismiss a particular matter for want of prosecution. The decision stands as an example of the Commission exercising s.587(3) on its own initiative where an applicant fails to engage after reasonable steps have been taken to assist and inform them.

Because the decision is brief and procedural, it does not reinterpret s.587 or create new law about the scope of dismissal for want of prosecution beyond applying the express wording of the statute in the factual circumstances recorded.

Key passages with plain-English translation

• Paragraph [1]: "On 2 June 2020, Mr Hsiang-Ching Li (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009." Plain English: The Applicant started the unfair dismissal process in the Commission on 2 June 2020.

• Paragraph [4]: "The matter was listed for Conference, by telephone, on 29 June 2020. The Fair Work Commission provided a Mandarin interpreter ... the matter was stood over as it was uncertain whether the Applicant was a member of the CFMMEU and I was of the view that the matter would be dealt with more efficiently if the Applicant obtained legal advice from his union." Plain English: The Commission held a telephone conference, gave the Applicant an interpreter, and paused the case to let him seek union help because that might make the process easier.

• Paragraph [7]: "On 29 July 2020, I referred the Applicant to the Commission's Workplace Advice Service." Plain English: After the Applicant said the union would not represent him, the Commission suggested its own advice service as an alternative.

• Paragraph [11]: Reproduction of s.587. Plain English: The Commission can dismiss an application for various reasons, including if it is not properly brought, is frivolous, or has no chance of success; importantly, the Commission can dismiss applications on its own motion.

• Paragraph [12]: "In the circumstances, I have decided to dismiss the application for want of prosecution." Plain English: Because of the Applicant's lack of engagement, the Commissioner ended the case by dismissing it.

What fact patterns trigger this precedent

This decision identifies the following procedural fact pattern that can trigger dismissal for want of prosecution under s.587:

• An applicant files an unfair dismissal application and the respondent files a substantive response raising issues ([1]–[3]).

• The Commission attempts to progress the matter by conferencing and providing language assistance where required ([4]).

• The Commission requests or encourages the applicant to obtain representation or advice (union or Commission services) and follows up when representation does not eventuate ([4]–[7]).

• The Commission gives clear written communications asking whether the applicant wishes to proceed, including an explicit deadline and a warning that the application may be dismissed if there is no response ([8]–[9]).

• The applicant fails to reply to those communications ([10]).

Where that chain of engagement is present and the applicant remains unresponsive, a Commissioner may properly exercise s.587(3) and dismiss the matter for want of prosecution, as occurred here ([11]–[12]).

How later courts have treated it

This decision is a single, short procedural Fair Work Commission decision and does not cite later treatment by other courts or tribunals. The judgment contains no references to subsequent cases because it is an original Commission order dated 16 September 2020. Therefore, from the text of this decision alone, it is not possible to state how later courts or tribunals have treated this specific decision. Any assessment of subsequent treatment would require searching later decisions and is not contained within this judgment.

Still-open questions

From the judgment itself the following questions remain open because the Commissioner did not decide them:

• The substantive merits of the unfair dismissal claim: whether Mr Li was in fact dismissed and, if so, whether ASP Access Floors was his employer or whether ANG Links P/L was the employer (these were raised by the Respondent at [3] but not decided).

• The precise sufficiency of the Commission's attempts to assist an unrepresented applicant in different factual circumstances: while the Commission gave interpreter assistance, encouraged union involvement, and referred the Applicant to the Workplace Advice Service ([4], [7]), different facts (for example, if an applicant had responded to some but not all communications) might lead to a different outcome.

• Whether dismissal for want of prosecution in light of s.587 requires additional procedural steps in particular categories of cases (for example, where language barriers exist) beyond those taken here. The Commissioner took steps to provide an interpreter and referrals, but the judgment does not discuss the full range of measures that might be required in other, more complex situations.

These questions are not answered in the text of the decision and would need consideration by a future tribunal or court examining similar facts.

Disclaimer: This is an explanatory analysis of the Commission's decision and what the written reasons say, not legal advice. I can make mistakes. Before you act on, rely on, or use any of this material, get a qualified Australian lawyer to check it.