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Judgment (27 paragraphs)
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Brenton Walker v Collins Transport Group T/A Collins Adelaide [2019] FWC 8019 (26 November 2019)
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s.394 - Unfair dismissal
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Application for an unfair dismissal remedy - applicant deceased prior to determination of application - no reasonable prospects of success - application dismissed.
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[1] This decision deals with an application by Mr Brenton Walker (the Applicant or Mr Walker) for an unfair dismissal remedy against Collins Transport Group T/A Collins Adelaide (the Respondent or Collins) under s.394 of the Fair Work Act 2009 (the Act).
[2] Mr Walker made his application on 23 July 2019.
[3] The matter was not resolved through conciliation and was allocated to me.
[4] A Directions Conference was listed for 24 October 2019. At the Conference, the Commission was advised by Collins representative, Ms Natasha Hemmerling, that the New South Wales State Coroner's Court had given her notice that morning of the death of Mr Walker, who had been involved in a fatal single vehicle truck crash on 21 September 2019.
[5] On 5 November 2019, Collins representative provided the details of Mr Walker's next of kin, Ms Lisa Ronayne.
[6] On 7 November 2019, Ms Ronayne was advised of the nature of the proceedings and that I intended to list the matter for a Directions Conference. She directed the Commission to contact her solicitor, Ms Bridey Lewis.
[7] Ms Lewis submitted a Form F53 Notice of Representative Commencing to Act on 7 November 2019.
[8] A further Directions Conference was listed for 22 November 2019.
[9] On 21 November 2019, Ms Lewis advised by email that Ms Ronayne wished to discontinue the application and requested the Directions Conference be vacated. My Associate advised Ms Lewis that the Directions Conference would be vacated, and that I would prepare a decision in respect of the application. The key issue in this matter is the ability of another to stand in the shoes of the Applicant after his death.
[10] In Rohrlach v L.M. Robertson & P.F. Robertson (), Commissioner Simpson summarised and applied Deputy President Gostencnik's observations in , which considered the ability for another to continue an unfair dismissal application after the death of the Applicant:
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"(1) Requirement for evidence of legal authority to purport to continue the application;
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(2) No rule in the Fair Work Commission Rules contemplating capacity to continue proceedings in the event of death as is the case in the Federal Court rules;
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(3) No express power or provision in the Fair Work Act (the Act) to allow a substitution of a party;
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(4) The right under the Act to make an unfair dismissal remedy application is personal to the dismissed employee and is non-assignable;
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(5) The remedies available do not follow simply by succeeding and are discretionary and the remedy of compensation is intertwined with and not severable from the discretionary considerations relating to an order for reinstatement;
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(6) The personal and discretionary nature of the remedies available make it unlikely that the right to bring and maintain the application is something that can be assigned, transmitted, devolved or passed to another person assuming such a power exists;
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(7) The passing of the Applicant resulting in an inability to cross examine in circumstances involving disputed facts resulted in a conclusion the application had no reasonable prospect of success and the application was dismissed on that basis."
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[11] Moreover, Commissioner Simpson said:
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"As the Deputy President observed in Stan v Frontline Australasia, s.394 of the Fair Work Act 2009 confers upon the aggrieved employee only the right to make an application for a remedy for unfair dismissal, not an entitlement to the remedy itself. He further noted that the nature of the right to apply for the remedy, combined with the 'personal and discretionary nature of the remedy' that may be awarded to a successful Applicant, makes it unlikely that the right to bring and pursue the application would constitute 'something that may be assigned, transmitted, devolved or passed to another person even assuming there is power to make such an order'."
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[12] I adopt the approach taken in Stan v Frontline Australia, as expressed in Rohrlach.
[13] Section 587 of the Act provides:
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(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
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(a) the application is not made in accordance with this Act; or
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(c) the application has no reasonable prospects of success.
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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.
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(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:
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[14] Mr Walker's death prevents Ms Ronayne from either pursuing or discontinuing the application as the right to apply for an unfair dismissal remedy cannot be assigned to another person. There is no possibility of making findings about or cross-examining the facts that are in dispute in respect of the application.
[15] I find that the application has no reasonable prospects of success and accordingly dismiss it. An Order reflecting this decision will be issued.[3]
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