Andrew Rosser-Kildare v Evolution Mining Limited
[2023] FWC 2531
•3 OCTOBER 2023
| [2023] FWC 2531 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Rosser-Kildare
v
Evolution Mining Limited
(U2023/8267)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 3 OCTOBER 2023 |
Application for an unfair dismissal remedy - application dismissed pursuant to s.587 of the Act.
On 31 August 2023 Mr Andrew Rosser-Kildare (the Applicant) lodged an application with the Fair Work Commission (FWC) against Evolution Mining Limited (the Respondent) seeking relief for unfair dismissal.
On 14 September 2023, my chambers issued directions to the parties, directing materials to be filed in respect of a jurisdictional hearing, to determine whether the Applicant should be granted an extension of time to lodge his unfair dismissal application, with regard to s394 of the Fair Work Act 2009 (FW Act).
The Applicant was directed to file his materials first, by 5pm (AWST), 21 September 2023. The Applicant did not provide his materials, seek an extension of time or correspond with chambers by the due date.
On 22 September 2023, my chambers wrote to Mr Rosser-Kildare to notify him of his non-compliance with the issued directions. The Applicant was directed to provide the outstanding materials by 10am (AWST), 26 September 2023. The Applicant did not comply with this direction, nor did he correspond with chambers.
On 26 September 2023, my chambers wrote to the Applicant again directing him to provide his materials as per the issued directions, along with the reason for his non-compliance with the issued directions, by 12pm (AWST), 27 September 2023. The email sent by chambers advised the Applicant that I would consider exercising my discretion under s587 of the FW Act to dismiss the application if a response was not received.
On 26 September 2023, the Applicant emailed chambers twice, as follows:
“Hi. Apparently I need to lodge a form with you guys can I have a better explanation of what is needed please. And a contact phone number.”
“Hi I'm not sure what needs lodging.
There is no contact phone number with these emails.
Im seeking assistance from the awu tomorrow in regards to this matter.
Its to complicated for me. Obviously.
Ill try calling the general phone number for the fair work commission to get in contact with Catriona.
Sorry for the delay but I am not sure what to do here.”
Chambers replied to these emails on the same day, attaching the issued directions again, noting that the response provided by the Applicant did not comply with Chambers earlier email. Specifically, the materials were not provided and a reason for the delay was not provided.
On 27 September 2023, the Applicant emailed chambers, as follows:
“The reason for not lodging within 21 days. Is that when I made contact with hr at evolution they advised me that the manager (wanita) would contact me and provide me with a response as to why I was dismissed and what happened to my entitlements.
A response was never given. And that's why I turned to the fair work commission. Not knowing anything about a 21 day period.
At this time I was also receiving treatment for depression and other health issues and this had came as a major surprise. And affected me accordingly.
Any medical certificates you may need I can provide. With reasonable time to do so. Doctors appointments take around 2 to 3 weeks to get into here.
Thank you for your time
Andrew”.
Chambers responded to the Applicant’s email of 27 September 2023, informing the Applicant that it was unclear if the email sent formed the entirety of the Applicant’s submissions. The Applicant was asked to:
Confirm whether his email of 27 September 2023 formed the entirety of his submissions, noting that the issued directions instructed that the submissions should address s394(3) of the FW Act.
Provide reasons for the Applicant’s failure to provide his submissions by the issued deadline of 21 September 2023.
Provide reasons for the failure to comply with Chambers email of 22 September 2023, directing the Applicant to file his submissions by 26 September 2023.
The Applicant was again put on notice that the Deputy President may dismiss the matter under s587 of the FW Act if the answers provided to the above issues were not satisfactory. It was suggested to the Applicant that he may wish to forward the correspondence sent by Chambers, to The Australian Workers' Union (AWU) if they were assisting him in the matter.
On 28 September 2023, the Applicant responded as follows:
“Hi yes I spoke with the awu yesterday.
I will forward this email to them.
As far as the response your asking for I assumed I had given you this information already and if you require it in another format. I will need assistance with this.
I'm not a lawyer I'm a blogger driver. And 2 days is not enough time to seek the legal advice I quite obviously need.
I'm sure your well aware of this, and pressuring me into doing things that I'm not qualified for in extremely short time periods, doesn't show a fair process to me.”
On 28 September 2023, the FWC requested that the Applicant arrange for the AWU to contact chambers to discuss the matter. Chambers also requested the name of the officer at the AWU assisting the Applicant. The Applicant provided this information to chambers on the same day.
On 29 September 2023, chambers contacted the AWU in relation to the matter. On the same day, the AWU advised they had been in contact with the Applicant, however were not assisting or representing the Applicant in his matter and had advised him that he had very limited prospects of success.
On 29 September 2023, chambers wrote to the Applicant, asking for his intention in respect to his matter. He was directed to provide a response by 4pm on 2 October 2023. The email stated that if the Applicant failed to provide a response by this time, I would proceed to dismiss his application.
Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521[1] (Samuel)) and that it has been found that an Applicant’s failure to prosecute their application can be a grounds for dismissal (Sayer v Melsteel Pty Ltd [2011] FWAFB 7498; Samuel; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp [2013] FWC 7641[2]).
In this instance, I am persuaded to exercise my powers under s587 to dismiss the application. The Applicant has failed to comply with directions, failed to respond to correspondence from the FWC and based on the submissions he has made, his case has no reasonable prospects of success. An order dismissing the application will issue.
DEPUTY PRESIDENT
[1] Samuel v Collins Transport Group Pty Ltd[2019] FWC 5521, [12].
[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [16]; Samuel v Collins Transport Group Pty Ltd[2019] FWC 5521, [13]; Atakaramians v Baycorp (AUS) Pty Ltd t/asBaycorp [2013] FWC 7641, [8].
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