Ben Dancaster v Hyundai Rotem Company

[2024] FWC 71

[2024] FWC 71

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ben Dancaster
v

Hyundai Rotem Company

(U2023/10556)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 11 JANUARY 2024

Application for an unfair dismissal remedy - application dismissed

1. This decision relates to an unfair dismissal application by Mr Ben Dancaster pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against his former employer, Hyundai Rotem Company.

1. The matter was listed for a directions hearing, by telephone, on 19 December 2023. Mr Dancaster did not appear at the directions hearing.

1. At the commencement of the directions hearing, my Associate attempted to telephone to Mr Dancaster about the matter and as the call was not answered, a voicemail message requesting a return call was left. A further telephone call was made shortly thereafter, again, the call was not answered. Mr Dancaster has not responded to these messages.

1. On 19 December 2023, the following email was sent from my Chambers to Mr Dancaster:

   “Dear Mr Dancaster

I refer to the unfair dismissal application you have lodged in the Fair Work Commission against your former employer, Hyundai Rotem Company.

You did not attend the conciliation conference in your unfair dismissal application. Nor did you attend, by telephone, the directions hearing in this matter before Deputy President Saunders at 4:45pm today.

Deputy President Saunders is considering whether your unfair dismissal application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your unfair dismissal claim.

If you wish to proceed with your unfair dismissal application, you must make contact with us by 4pm on Friday, 22 December 2023. If we do not hear from you by that time, your unfair dismissal application may be dismissed without further notice to you. You may contact us by email ([e-mail]) or by telephone [phone].

Alternatively, if you do not wish to proceed with your unfair dismissal application you can inform us, by reply email, that you wish to discontinue your application.

Yours sincerely”

1. No response from Mr Dancaster was received by my Chambers.  

1. On 28 December 2023, the following email was sent from my Chambers to Mr Dancaster:

   “Dear Mr Dancaster
   
   We note that we did not receive a response to our below correspondence. It is the Deputy President’s current view that your unfair dismissal application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your unfair dismissal claim.

   If you wish to proceed with your unfair dismissal application, you must make contact with us by 4pm on Monday, 8 January 2024. If we do not hear from you by that time, your unfair dismissal application may be dismissed without further notice to you. You may contact us by email ([e-mail]) or by telephone [phone]. I note that if you do not discontinue your application and the Commission dismisses your application because you are not pursuing your application, a publicly available decision must be published on the Fair Work Commission website.

   Alternatively, if you do not wish to proceed with your unfair dismissal application you can inform us, by reply email, that you wish to discontinue your application.”

1. Again, no response from Mr Dancaster was received by my Chambers.  

1. In light of Mr Dancaster’s failure to appear at the Directions Hearing and his failure to take any steps to prosecute or pursue his unfair dismissal claim, together with the absence of any communication from Mr Dancaster, I have decided to exercise my discretion pursuant to s.587(1) of the Act to dismiss Mr Dancaster’s unfair dismissal application against the respondent in these proceedings. The application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR770128>