Fair Work Act 2009

s.394 - Unfair dismissal

Applicant for an unfair dismissal remedy - application dismissed - s 587.

[1] This decision concerns an application by Mr James Willis (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant was employed BE Imaging Pty Ltd (the Respondent) and claimed they were unfairly dismissed.

[2] The Applicant lodged their Form F2 Unfair Dismissal Application on 16 September 2020. A Form F3 Employer Response was filed by the Respondent on 1 October 2020. The matter was allocated to my Chambers for hearing and determination on 10 November 2020.

[3] The matter was subject to some preliminary settlement discussions between the parties, which were unsuccessful. Directions were sent to the parties on 17 November 2020. The matter was listed for conference on 30 November 2020. The Applicant initially failed to attend, despite numerous phone calls. Chambers sent the following email:

Mr Willis, you were due to appear before Deputy President Lake for a conference today at 11am AEST. I attach the Notice of Listing. You are required to make contact with Chambers via email, explaining your failure to attend the conference.

The Deputy President directs that a failure of the Applicant to comply with a direction of the Commission can result in the claim being dismissed as frivolous or vexatious under s 587(1)(b) or otherwise, under s 399A(1)(b) of the Fair Work Act 2009, on application by the Respondent. Should you fail to respond to this email within 24 hours, your claim faces being dismissed.

[4] Shortly after, the Applicant attended. Despite the delay, the conference proceeded.

[5] The Notice of Listing dispatched 17 November 2020 clearly directed the Applicant to file by 4pm AEST, Thursday 31 December 2020. No documentation was received and on 5 January 2021 Chambers sent the following email:

Mr Willis, you were due to provide submissions by 4pm AEST, 31 December 2020. Chambers has not yet received these submissions and notes your previous tardiness in attending the scheduled conference of 30 November 2020. Attached is the Notice of Listing outlining these obligations, as sent to you on 17 November 2020.

You must provide your submissions, as well as an explanation for you delay in filing, by 4pm AEST, Wednesday 6 January 2021.

The Deputy President directs that a failure of the Applicant to comply with a direction of the Commission can result in the claim being dismissed as frivolous or vexatious under s 587(1)(b) or otherwise, under s 399A(1)(b) of the Fair Work Act 2009, on application by the Respondent. Should you fail to respond to this email 6 January 2021, your claim faces being dismissed.

[6] No documentation was received in line with Chambers direction and on 8 January 2021 the following email was sent:

Chambers has not received submissions. You must file these submissions, by email, by close of business today.

I reiterate that you claim faces being dismissed if these submissions are not received.

[7] No response was received from the Applicant and at 7:19am on 11 January 2021, an email was sent providing a further final opportunity to contact Chambers:

You must make contact with Chambers immediately. A failure to do so before 4pm AEST, 11 January 2021 (today) will result in your claim being dismissed. Once the matter has been dismissed it cannot be reopened.

[8] The Applicant contacted the Registry on 6 January 2021, but has failed to contact Chambers despite the above. No correspondence or communication has been received explaining the Applicant's failure to respond. In line with the above authority, the Applicant has been given sufficient time and numerous opportunities to make contact.[1]

[9] I have concluded that in circumstances, the Applicant failed to comply with my reasonable direction and therefore, has failed to prosecute their claim. I provided numerous opportunities for an explanation, but no correspondence with Chambers was received. As indicated in Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run [2011] FWA 4812, a failure to provide material could render an application with no reasonable prospect of success. However, if such an approach was found not to be sufficient, it is clear that 'the introductory words in s.587(1) indicate, the circumstances in which the Fair Work [Commission] may dismiss an application are not limited to those matters in s.587 of the Act.'[2]

[10] I am satisfied that Chambers has taken appropriate steps to inform the Applicant of the consequences of failing to provide the relevant documentation. I am also satisfied that sufficient time and warning was given to comply and that the failure to comply is both disrespectful and unconstructive. I find it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant's unfair dismissal application pursuant to s 587.

[1] Richard Carter v The Hanna Group Pty Ltd [2011] FWA 31, [6] (DP Sams).

[2] Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run [2011] FWA 4812, [11] (DP Bartel).

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