Aidan McCormick v McDonald's Australia

[2020] FWC 6307

[2020] FWC 6307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aidan McCormick
v
McDonald’s Australia
(U2020/7399)

COMMISSIONER BOOTH BRISBANE, 24 NOVEMBER 2020

Application for an unfair dismissal remedy - application dismissed under s.587.

[1] On 28 May 2020, Mr Aidan McCormick (the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy, alleging he was unfairly dismissed from his employment with McDonald’s Australia (the Respondent).

[2] The matter was listed for conciliation before a Fair Work Commission Conciliator on 24 June 2020 but was unable to be resolved.

[3] The matter was then allocated to my Chambers on 20 July 2020 for determination. I issued Directions for filing of material on 28 July 2020. I also issued a Notice of Listing for a Mention and Conference to be held on 18 August 2020.

[4] On 5 August 2020, correspondence from my Chambers was sent to the parties advising that, due to scheduling requirements, the Mention and Conference was relisted to commence on 19 August 2020. A Notice of Listing was issued reflecting this change.

[5] The Applicant and Respondent attended the Mention and Conference by telephone as directed.

[6] On 25 September 2020, correspondence was sent to the parties advising that I intended to list the matter for a further conference on 15 October 2020. Amended Directions were also issued to parties. The Applicant was directed to file materials in support of his substantive application by no later than 23 October 2020. I also issued a Notice of Listing for the Conference to be held on 15 October 2020. The parties were asked to confirm their contact details to Chambers, for the purposes of the Conference, by 13 October 2020.

[7] On 15 October 2020, my Associate attempted to contact the Applicant by telephone three times (3:32 pm, 3:33 pm and 3:34 pm) to connect him to the conference. A voicemail was left that was converted to text requesting an urgent call back. An email was sent at 3:37 pm requesting that the Applicant make himself available for the Conference.

[8] On 16 October 2020, further correspondence was sent from my Chambers noting the Applicant did not attend the Conference, and directing the Applicant to provide any response regarding whether he still sought to progress his application, in writing to Chambers by 20 October 2020. The Applicant did not provide a response.

[9] On 21 October 2020, the Respondent sent correspondence to Chambers, copying in the Applicant, seeking that the Applicant’s application for an unfair dismissal remedy be dismissed on the basis that the Applicant failed to attend the Conference on 15 October 2020 and failed to respond to Directions of the Commission.

[10] At 3:29 pm on 22 October 2020, my Associate attempted to contact the Applicant on the mobile number provided and left a voice message to call back that was converted to a text message. On the same day, correspondence was sent directing the Applicant to provide an update to Chambers by close of business 23 October 2020. The Applicant was also put on notice that if no correspondence was received, the file may be dismissed under s.587 of the Act.

[11] No further correspondence or telephone contact has been received from the Applicant to date.

[12] Section 587 of the Act provides as follows:

“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.

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.

(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:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[13] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[14] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 1 Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.2

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various correspondence from Chambers and has failed to file any material in the matter beyond his initial Form F2. The Applicant has failed to provide any reasonable explanation to the Commission for his failure to comply with directions. The Applicant has shown no willingness to prosecute his case and taken no steps to do so.

[16] In L. Sayer v Melsteel Pty Ltd, 3 the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[17] In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution. An Order to this effect will issue accordingly.

COMMISSIONER

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 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

 2   Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

 3   [2011] FWAFB 7498 at [19].