Adam Meyrick v James Contract Supplies Pty Ltd

[2019] FWC 1275

[2019] FWC 1275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Adam Meyrick
v
James Contract Supplies Pty Ltd
(U2018/11722)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 28 FEBRUARY 2019

Application for an unfair dismissal remedy

[1] On 14 November 2018 Mr Adam Meyrick (‘the applicant’ or Mr Meyrick) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) alleging that he was unfairly dismissed by his former employer James Contract Supplies Pty Ltd (James Contract Supplies or ‘the respondent employer’) on 24 October 2018.

[2] The respondent employer filed a response on 9 January 2019 contending that Mr Meyrick was not unfairly dismissed.

[3] In accordance with the Commission’s regular practice the matter was referred to a Commission appointed conciliator for conciliation by telephone. The conciliation was scheduled for 21 January 2019. The conciliation did not proceed due to the non-participation of Mr Meyrick. The Commission then sent the parties a letter (to email addresses previously notified) inviting a response within two working days if they sought conciliation to be re-scheduled.

[4] By email dated 23 January 2019 Mr Meyrick advised the Conciliator that he was “able to obtain an appointment with a lawyer to obtain legal advice on the discussed situation” and that he was “hoping to put off commencing any fearther (sic) until I have consider all my options.”

[5] No further contact was made with the Commission. No conciliation was re-scheduled. Mr Meyrick’s application was then referred to me for hearing and determination.

[6] On 11 February 2019 I directed that a Notice of Listing be issued listing Mr Meyrick’s application for a directions hearing by telephone at 12.00pm (ACDT) Wednesday 20 February 2019. Dial-in details were provided. The Notice of Listing was sent to the parties to email addresses previously notified (and from which Mr Meyrick had communicated with the Commission on 23 January 2019).

[7] At 12.00pm (ACDT) Wednesday 20 February 2019 Mr Meyrick had not phoned into the directions hearing. My Associate made two telephone calls to Mr Meyrick. On both occasions the calls were not answered and went to voicemail. An urgent voicemail message was left for Mr Meyrick advising that he was due to participate in a hearing at that time. Mr Meyrick did not respond to the voicemail.

[8] At 12.10pm I commenced the directions hearing. The respondent employer was represented. There was no appearance by Mr Meyrick.

[9] An audio record of the directions hearing was made. I outlined the background as known to me, as set out above. I advised the hearing that:

● I will adjourn the directions hearing to 9.00am (ACDT) Wednesday 27 February 2019; and

● That I will not list Mr Meyrick matter for arbitration until such time as I am satisfied that Mr Meyrick is prosecuting his application in a manner consistent with the obligations of an applicant to the Commission. These include an obligation to comply with directions of the Commission, to participate in scheduled hearings, to respond to email or telephone communications from the Commission and to promptly advise of any unavailability to comply with directions or attend hearings.

[10] On 20 February 2019, in light of the non-appearance by Mr Meyrick at the directions hearing earlier that day, I issued directions. A fresh Notice of Listing for 27 February 2019 was also issued.

[11] The Directions I issued were as follows:

1. That the directions hearing held at 12.10pm (ACDT) on 20 February be adjourned until 9.00am (ACDT) on 27 February 2019; and that Mr Meyrick and James Contract Supplies be directed to attend;

2. Mr Meyrick is to provide to the Commission and to James Contract Supplies an explanation in writing for his non-attendance on 20 February 2019 by close of business (5.00pm ACDT) Monday 25 February 2019;

3. That, if I am satisfied that Mr Meyrick is and intends to prosecute his application in a manner consistent with the obligations of an applicant to the Commission, then (subject to hearing from the parties) I will set Mr Meyrick’s application down for hearing and determination and issue directions related thereto.

[12] In my Directions I also observed:

“[10] The parties should also note that the Commission has power to dismiss matters of its own motion under section 587 of the FW Act if an application has no reasonable prospects of success. Mr Meyrick is on notice that should an applicant fail to prosecute its application it is open for the Commission to conclude that it has no reasonable prospects of success.”

[13] No materials or explanations were filed by Mr Meyrick by 25 February 2019, or at all, as directed.

[14] On 27 February 2019, Mr Meyrick failed to phone into the adjourned directions hearing. At 9.00am my Associate telephoned Mr Meyrick on the mobile phone number he had previously advised the Commission. The call was not answered. It went to message-bank. A voice mail message was left for Mr Meyrick to urgently contact the Commission as a hearing on his application was to proceed. I commenced proceedings at 9.05am (ACDT).  The employer appeared. Mr Meyrick did not do so. An audio record of the directions hearing was made.

[15] The employer submitted that the Commission should dismiss the application of its own motion pursuant to section 587 of the FW Act. At the conclusion of proceedings I indicated that I would, in all the circumstances, dismiss the application and deliver written reasons in due course, which I now do.

[16] Section 587(1) of the FW Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[17] I am not satisfied that Mr Meyrick is prosecuting his application in a manner consistent with the obligations of an applicant to the Commission. This includes his failure to comply with directions of the Commission, to participate in scheduled hearings, to respond to email or telephone communications from the Commission and to promptly advise of any unavailability to comply with directions or attend hearings.

[18] I am also satisfied that Mr Meyrick has had due notice of proceedings and has been provided sufficient forewarning that the Commission may exercise power of its own motion under section 587 of the FW Act to dismiss applications that are not being actively prosecuted.

[19] Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. As such, the application is dismissed pursuant to section 587(1)(c) of the FW Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant

H. Lockwood and K. Start, for the Respondent

Hearing details:

2019.

Adelaide; by telephone.

20 and 27 February 2019.

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