Fair Work Act 2009

s.394 - Unfair dismissal

L.M Robertson & P.F. Robertson T/A PF & LM Robertson

Application for an unfair dismissal remedy - applicant deceased prior to determination of application - whether application for unfair dismissal remedy made under s. 394 survives death of applicant and may be continued to an estate - no reasonable prospect of success -application dismissed

[1] This matter concerns an application by Mr Timothy Rohrlach (the Applicant) for relief for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), on the basis that he alleged the termination of his employment with L.M Robertson & P.F. Robertson T/A PF & LM Robertson (the Respondent) was harsh, unjust and or unreasonable.

[2] The Application was made on 11 December 2017 and a conciliation conference was held on 8 January 2018, which did not resolve the matter. The Respondent raised jurisdictional objections to the application on the basis that they argued the Applicant had been made redundant due to a shortage of work, and that the business was a small business and the dismissal was in line with the Small Business Fair Dismissal Code. The matter was subsequently referred to me for determination of the jurisdictional matters and the merits. On 21 February 2018, Directions were issued for the filing of material in preparation for a hearing, which was listed on 16 April 2018 in Cairns.

[3] On 5 March 2018, the Applicant's representative Ms Mel Esposito informed my Chambers that the Applicant had sadly passed away, and that the Applicant's next of kin, Ms Rohrlach, wished to press the application and sought confirmation from the Commission as to whether the proceedings would be able to continue in the circumstances. Ms Esposito also advised that the Applicant had passed away intestate, and that Ms Rohrlach did not have power of attorney to instruct Ms Esposito. Ms Esposito sent an email to Chambers the following day to much the same effect.

[4] I instructed my Associate to respond to Ms Esposito and the Respondent on 6 March 2018, referring the parties to the decision of Deputy President Gostencnik in Stan v Frontline Australasia,[1] and the following paraphrased observations in that case:

"(1) Requirement for evidence of legal authority to purport to continue the

(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;

(3) No express power or provision in the Fair Work Act (the Act) to allow a substitution of a party;

(4) The right under the Act to make an unfair dismissal remedy application is personal to the dismissed employee and is non-assignable;

(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;

(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;

(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."

[5] The correspondence further advised that the Directions issued on 21 February 2018 were vacated and sought responses from the parties as to whether they wished to be heard on the issue of whether the proceedings could continue.

[6] On 12 March 2016, Ms Esposito advised Ms Rohrlach was intending to file a Notice of Commencing to Act on behalf of the deceased Applicant, but had been prevented from doing so by significant flooding in her area of Far North Queensland. She expected to do so by the end of the week. Ms Esposito simultaneously formally withdrew as solicitor for the Applicant.

[7] Following this, on 16 March 2018, Ms Esposito advised the Commission that she had been instructed by Ms Rohrlach that she did not seek a hearing to determine whether the application could proceed following the Applicant's passing. Therefore she confirmed that the matter could not proceed and sought that the Commission discontinue the application.

[8] Although Ms Esposito advised the Commission that Ms Rohrlach is the Applicant's next of kin, the Commission has not been provided with any evidence of such or any legal authority.

[9] As the Deputy President observed in Stan v Frontline Australasia,[2] 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.[3] 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'.

[10] In that case, the Deputy President held that the application no longer had any reasonable prospect of success and should be dismissed, finding that the prospects of success were drastically altered when the applicant in that matter passed away.[4] Further, in circumstances where evidence cannot be obtained from the applicant and which cannot be subject to cross-examination, the Deputy President considered that any factual disputes could not be properly tested.[5]

[11] It also was recently observed by Commissioner Riordan in Cantwell v Olympus Medical Centre (Brisbane City) Pty Ltd,[6] in dismissing a costs application against a recently deceased party, that the matter could not be determined 'without denying the Applicant her legal right of natural justice and procedural fairness'.

[12] In the current matter, there is no power for Ms Rohrlach to either press or discontinue the application in circumstances where the Applicant has passed away and she has not provided evidence of her standing as the next of kin. Even if this had been established, the right to apply for a remedy for unfair dismissal is non-assignable, per the finding in Stan v Frontline Australasia. Finally, there are a number of considerations of procedural fairness, particularly with regard to the capacity to give and test evidence and to the right of reply, which prevent the proceedings from continuing following the passing of the Applicant.

[13] For the reasons set out above the application must be dismissed.

[1] [2014] FWC 5457.

[6] [2018] FWC 1457 at [21].

Printed by authority of the Commonwealth Government Printer