Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - application made by employer to dismiss s.394 application pursuant to s.399A and s.587 - application to dismiss not granted - procedure set

• [1] This decision relates to a further application made by Queensland Rail (the Respondent /Employer) to dismiss the section 394 unfair dismissal application by Mr Wight (Applicant/ Employee). This second application to dismiss also relies on the same sections of the Fair Work Act 2009 (Cth) (the Act) as the initial application. Those provisions being s.399A(1)(b) for Mr Wight's non-compliance with the Directions; set to file material in support of his application. Further the employer applied under s.587(1)(c) arguing-that the application based on the limited materials filed by the Applicant has no reasonable prospects of success.

• [2] The decision dismissing Queensland Rail's initial application (seeking to dismiss Mr Wight's unfair dismissal application), Zachary Wight v Queensland Rail Limited[1] confirmed that the material provided by the Applicant was not responsive to the Employer's reason for his termination; being his presentation at the workplace with THC in his system. However, as set out in that decision, the Applicant's case relied on the alleged separate treatment he says he was subjected to by Queensland Rail in the lengthy period prior to the termination.

• [3] Mr Wight had been employed for over six years working as a Shunter with the Respondent, until his employment was terminated as set out in the extract of the Letter of Termination that stated 'In Queensland Rail safety comes first. Always. Working safely is a condition of employment, and we all take personal accountability for the safety of customers, ourselves, our colleagues, and the general public. In this case this means that you are required to present to work fit for duty and under the prescribed limit of alcohol and other drugs.'

• [4] It is reasonable that Queensland Rail made the applications to dismiss in the circumstances where the responses have not provided a clear, written explanation of his objection. The Applicant has not sufficiently addressed s.387 of the Act, as per the Directions.

• [5] The Applicant and his support person have however been able to articulate the Applicant's case to a greater degree in the Mentions before the Commission. The case they submitted depends on the nature of the Applicant's grievances and the manner in which Queensland Rail has managed Mr Wight's employment over the course of the proceeding years. The Applicant argued that the Employer's course of conduct did not adhere to the proper discharge of the company's policies and that, the Applicant states, led him to self-medicate with marijuana, which was the reason for the termination of his employment.

• [6] The Employer's prior application to dismiss the unfair dismissal application was considered to be premature to determine then that there was no reasonable prospect of success. After that decision, I had all of the Applicant's material (whether filed within or outside of the Directions) collated into a Digital Hearing Book and sent to the parties. It is recognised that the material filed by the Applicant still does not afford the Respondent a clear opportunity to accurately understand the Applicant's case and to respond to such. The Applicant has filed a series of the Employer's correspondence and policies but not provided evidence on these as to the Employer's alleged deficiencies in relying on them. Accordingly, a further procedure is warranted to capture the Applicant's evidence.

• [7] It is acknowledged that the case that Mr Wight is adopting before the Commission has not been clearly addressed in writing. He has submitted that the events of the termination; testing positive as having smoked marijuana, were linked to the significantly unfair treatment he alleged he received from the Employer in the two to three years prior to termination. Mr Wight has stated that during this period he was unlawfully stood down from work without payment, for a period approximating two years. In that period, the Employer implemented a 'health plan' which the Applicant submitted required him to provide monthly counselling reports undertaken at his own expense. Mr Wight claimed the Employer failed to apply the company policies appropriately to him; but he has not clearly detailed the alleged deficiencies in the application of the policies or the related unfairness. Mr Wight's application referred to his treatment by the Respondent as being responsible for the breakdown of the relationship with his partner, with whom he shares a three-year-old son. The Applicant's former partner is currently acting as his support person, in assisting to prepare his case whilst she is studying engineering, and caring for their small child. The Applicant and his support person have not been able to address in a meaningful way their case regarding the alleged unfair, long-term treatment of the Applicant, which they say has brought about the events of his termination. Further, they have not been able to commit the reasoning into written submissions and evidence, as to how they rely on the unfair application of the policies and procedures.

• [8] It has emerged that at the same time as the material of the Applicant has been required to be filed in the Commission, that the review of the Applicant's Workers Compensation application had been conducted in the Queensland Industrial Relations Commission. The Applicant subsequently filed the review decision with the Commission. The Applicant has not identified in any reliable manner, its relevance to the current proceedings. The review decision referred to the initial findings and provided that the original decision was to stay the same. The review decision found that the Applicant had suffered a psychiatric injury, arising out of his employment with the Respondent. Further to this, the review decision found that the injury sustained arose out of the Respondent's management action, however the decision found that the actions of the Employer were reasonable and taken in a reasonable way.

• [9] The applications by the Respondent are reasonable; in circumstances where they cannot decipher the case they are to respond to. The written material provided by the Applicant has not adequately addressed the reason for termination, in the regular way that would be expected, to allow for the Respondent to understand the Applicant's case. The Applicant has filed a number of Queensland Rail policies and procedures that he stated in conference were not correctly followed in relation to his case. The Applicant has stated that the workplace directions he received, during the period prior to his termination, were in significant conflict with the policies and procedures Queensland Rail was expected to adhere to. In relation to this alleged, long-term, unfair treatment the Applicant submitted this caused him to self-medicate and to return to work, presenting with THC in his system.

• [10] As set out in the first decision in response to the Respondent's application to dismiss, caution is to be used when considering dismissing an application under both sections 587(1) and 399A.[2]

• [11] Prior to dismissing an application, a recent Full Bench of the Commission in Mathrew Priestley and Mika Tyson v Blackfisch Films Pty Ltd,[3] referred to the relevant application of the principles from the case of Hoser v Hartcher,[4] in emphasising that a Member must weigh the impact of such a decision on each party:

"[33] The exercise of a discretion by a member of the Commission to summarily dispose of proceedings on grounds of want of prosecution, under s 399A in the case of unfair dismissal proceedings or otherwise, involves a balancing exercise in which a variety of factors are to be considered. Considerations such as those set out by Simpson J in Hoser v Hartcher are likely to be relevant. The ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. That assessment must also be undertaken taking into account the obligations of the Commission under s 577(1) of the Act and the impact of any non-compliance with directions on the operations of the Commission more broadly." (Emphasis added).

• [12] Hoser v Hartcher is a New South Wales Supreme Court decision whereby Justice Simpson laid out a non-exhaustive list of eleven principles that are relevant to the discretionary exercise of dismissing a matter for want of prosecution.[5] These included that 'the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed'[6] and that 'the discretion should be exercised only in a clear case where it is manifestly warranted'.[7]

• [13] I have undertaken the balancing exercise in relation to the impact on both parties of dismissing the matter and consider in these circumstances, it is not appropriate to dismiss the s.394 application given this would be an end to the Applicant's ability to prosecute his case, particularly where alternative steps are available for the Applicant to progress the matter and bring his evidence. These steps can be taken whilst minimising the prejudice to both parties. It is considered that amending the procedure for the Applicant to bring his evidence at hearing whilst providing fairness to both parties is warranted. To prematurely dismiss the matter would significantly prejudice the Applicant by preventing him from being able to bring his case. In the current circumstances the Applicant is to be afforded the opportunity to present his case by giving oral evidence. Until such time as that occurs, it cannot be concluded that the Applicant's case has no real reasonable prospect of success.

• [14] I do not consider that this will provide prejudice to the Respondent. Queensland Rail is a large employer with extensive dedicated industrial relations resources. They have been aware of this application for some time and are aware of the Applicant's difficulties in providing written responses to progress his case.

• [15] Sections 399A(1)(b) and 587(1)(c), have both been considered against the circumstances. The application to dismiss the Applicant's s.394 application is for the aforementioned reasons not granted.

• [16] I consider amending the regular process of filing evidence in this way is in accordance with s.577(1)(a)-(c). That is:

"(1) The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

• [17] It is acknowledged that the Applicant has struggled to prepare his written case. It is also accepted that fairness must be afforded to the Respondent, to allow them to be clearly informed of the case that they are to answer. In weighing all matters in this case to date, I consider that the procedure at this point should be, to accept all of the Applicant's documents filed to date, and to require the Applicant to attend a hearing to provide his witness evidence orally. In relation to the Queensland Rail policies and procedures he has provided and specifically the reason for the termination of his employment.

• [18] A hearing date will be listed, and the Applicant will proceed by providing evidence in relation to his case. Following the provision of the Applicant's evidence, the hearing will then be suspended to allow for the Respondent to assess the case, and to file any evidence and submissions in response.

• [19] The application to dismiss made pursuant to sections 399A(1)(b) and 587(1)(c) is refused. I Order accordingly. Further Directions for the process as outlined are issued separately.

[1] Zachary Wight v Queensland Limited [2025] FWC 457.

[3] Mathrew Priestley and Mika Tyson v Blackfisch Films Pty Ltd [2025] FWCFB 40.

[4] Hoser v Hartcher [1999] NSWSC 527 [20]-[30].

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