Anthony Haugh v Combined Waste Services Pty Ltd
[2024] FWC 1343
•22 MAY 2024
| [2024] FWC 1343 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Anthony Haugh
v
Combined Waste Services Pty Ltd
(U2024/2553)
| COMMISSIONER CONNOLLY | MELBOURNE, 22 MAY 2024 |
Application for an unfair dismissal remedy – application dismissed pursuant to s.587 of the Fair Work Act 2009.
On 6 March 2024, Mr Anthony Haugh (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Combined Waste Services Pty Ltd (the Respondent).
On 8 April 2024, the parties both attended a conciliation conference conducted before a Commission staff conciliator. The matter did not resolve at this conciliation.
Subsequently, the matter was allocated to my Chambers on 9 April 2024 for determination.
On 10 April 2024, Directions were issued for the filing of submissions and evidence and the matter was listed for a Mention on 19 April 2024, and set down for a Hearing on 3 June 2024. Paragraph [14] of the Directions advised that ‘Compliance with these Directions is mandatory and a failure to comply is likely to disadvantage the party concerned’.
On 15 April 2024, the Applicant’s representative, Australian Dismissal Services, filed a form F54, advising that they have ceased to act for the Applicant. On 17 April 2024, in response to this being forwarded to the Applicant, the Applicant sent the following email to Chambers:
“What an incredible bad job I'm surprised you've got a company.. combined waste lied and it's all unproven.
Your company was a waste”
The Applicant did not attend the Mention a 10:00AM on 19 April 2024. Between 9:50AM to 10:00AM, my Chambers attempted to contact the Applicant on the mobile phone number that was provided in his Form F2 application. The Applicant was unreachable. The Applicant was also sent the following correspondence ahead of the Mention:
“Dear Mr Haugh
I refer to the above matter and attached notice of listing.
The matter is listed for a mention hearing this morning at 10am before Commissioner Connolly.
I have tried to contact you via phone this morning with no success. Can you please inform chambers as soon as possible whether you intend on attending the mention hearing this morning?
For your convenience - I have included the link to the mention below:
…
Please note, the Commissioner will commence the mention hearing at 10:15am if you are not present…”
The Mention was conducted without the Applicant. The Respondent was represented by Ms Jordan Bauer (Legal representative for the Respondent) and Ms Tara McCormack.
On 23 May 2024, my Chambers sent the Applicant correspondence noting that he did not attend the Mention and outlined the next steps as provided for in the Directions and sought confirmation on whether he intended to press his application. The Applicant was also invited to discontinue the application if he did not wish to pursue it further. No response was received.
The Applicant’s initial submissions were due to be filed to Chambers and served on the Respondent by 1 May 2024. The Applicant did not file any submissions, nor did he send any correspondence to the Commission. On 14 May 2024, the Respondent confirmed they had also not received any correspondence or material from the Applicant.
On 14 May 2024, my Chambers attempted to contact the Applicant via mobile phone and sent a non-compliance email in the following terms:
“Dear Mr Haugh,
RE: U2024/2553 - Anthony Haugh v Combined Waste Services Pty Ltd
I refer to the matter above and correspondence attached.
I have attempted to contact you several times on the mobile number you have provided in your Form F2 and have not been successful.
As per the Directions attached, you were required to file submissions by 4:00pm on Wednesday, 1 May 2024. You did not comply with these Directions as the Commissioner is yet to receive any material from you.
The matter has now been listed for a Non-compliance Hearing on Wednesday, 15 May 2024 at 12:30pm (VIC Time) via Video. A Notice of Listing to this effect will be issued separate to this email.
If you intend to file submissions, you should do so without further delay. If you file your submissions by 4:00pm TODAY, 14 May 2024, the Non-compliance Hearing will be vacated (Cancelled).
Please note, if you do not file submissions and do not attend this Hearing your application is likely to be dismissed entirely.
Alternatively, if you do not intend to pursue your application further, please file a signed Form F50 Notice of Discontinuance as soon as practicable.”
The Applicant did not respond.
Prior to the commencement of the Non-compliance Hearing on 15 May 2024, my Chambers attempted to contact the Applicant via mobile phone and sent the Applicant the following correspondence:
“Dear Mr Haugh,
RE: U2024/2553 - Anthony Haugh v Combined Waste Services Pty Ltd
I refer to the matter above and Non-compliance Hearing listed for 12:30pm (VIC Time).
I have attempted to contact you several times with no success.
Please be advised that if you did not attend this Hearing by 12:35pm (VIC Time), the Commissioner will proceed without you.
Please note, non-compliance may place your application at risk of dismissal.”
The Applicant did not respond and did not attend the Non-compliance Hearing. The Respondent was present.
To this date, no communication has been received from the Applicant since 17 April 2024.
s.587 of the Act provides:
“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.”
In McLeod v Kulgera Trading Company Pty Ltd,[1] Vice President Catanzariti held that s.587 was sufficiently broad to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.
In the present circumstances, the Applicant has clearly demonstrated an unwillingness to prosecute his case. The principle of ‘a fair go all round’ applies to both employers and employees. I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources responding to a claim that the Applicant initiated and appears to have had no intention of following through. The Applicant has had a fair opportunity to respond to the concerns of the Commission and has chosen not to on every occasion.
I adopt the approach taken by Vice President Catanzariti and find that “fairness, justice, equity and good conscience”[2] warrant the dismissal of this application.
ORDER
The application lodged by Mr Anthony Haugh pursuant to s.394 of the Act on 6 March 2024 is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.
COMMISSIONER
[1][2014] FWC 2112.
[2] Ibid [10].
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