Bruce Langford v Electrical Testing Services Pty Ltd
[2023] FWC 443
•22 FEBRUARY 2023
| [2023] FWC 443 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Bruce Langford
v
Electrical Testing Services Pty Ltd
(U2022/11272)
| DEPUTY PRESIDENT CROSS | SYDNEY, 22 FEBRUARY 2023 |
Application for an unfair dismissal remedy
Mr Bruce Langford (the Applicant) was employed by Electrical Testing Services Pty Ltd (the Respondent) from 16 March 2022 to his dismissal on 15 November 2022. The Applicant filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 25 November 2022 (the Application).
Relevant Facts and Directions
On 24 January 2023, my Chambers issued a Notice of Listing for a member assisted conciliation and directions hearing (first Directions Hearing), for 30 January 2023. The following email accompanied that Notice of Listing:
Dear Parties,
The above matter has been allocated to the Chambers of Deputy President Cross for consideration and determination.
This matter has been listed for Member Assisted Conciliation and Directions Hearing at 2:00 PM on Monday, 30 January 2023 You will have received a Notice of Listing by way of automatically generated email from the Fair Work Commission, and it is again attached for your reference. This Listing outlines important information in respect of the next steps in the progress of your matter, including the date, time, and manner that you are required to attend the Member Assisted Conciliation and Directions Hearing.
Chambers notes that no employer response has yet been received in this matter, the Respondent is requested to file a Form F3 – Employer Response by 4:00 PM, on Friday 27 January 2023.
The Listing contains draft Directions for your review. These Directions have not yet been made and will be discussed at the above Listing.
Please confirm your attendance in reply, and include a list of prospective attendees. For each attendee, please advise the following information
On 25 January 2023, the following email from the Applicant was received by my Chambers:
To date the two past conciliation meetings have been organised and on both occasions Electrical Testing Services P/L have failed to appear or provide appropriate information.
As a result, the sessions were closed down, nearly as fast as they opened – with no results obtained.I understand from your correspondence that Electrical Testing Services P/L have still made no contact with yourselves and a deadline has been set for 27/1/2023 for them to supply appropriate information in the form of Form F3 and you would consider their attendance to the video meeting on Monday 30/1/2023.
If I have no assurance from yourselves that Electrical Testing Services P/L will be attending the video meeting on Monday 30/1/2023 then I see no point for this meeting to proceed, as this like all other meetings in the past just closes down as soon as it opens with no results.
I was hoping that this unfair dismissal matter could have been resolved through conciliation – however it appears that Electrical Testing Services P/L want to take the hard nose attack and go through the courts without conciliating with me.
I have been unemployed since my sacking with Electrical Testing Services P/L, gaining no long term employment and don’t have the money to fight the case in court if there is any cost involved.
I guess this is a case of society today where more employment is going to casual employment and the Employer can bully the workers and hire and fire ‘willy dilly’ without any consequency for ethics or the law.
Regards,
Bruce Langford.
On 27 January 2023, the following email from the Applicant was received by my Chambers:
See below
Has an employer response been received???
As mentioned before in previous email and conversation – what’s the point going any further with the case if the there is no response from the employer.
Just a lost cause.
I give up!
On 30 January 2023, the following email from the Respondent was received by my Chambers:
Good Morning,
My sincere apologies for not replying earlier. I had unfortunately been quite unwell with Covid -19 and it kept me off work for quite some time.
I am just requesting an adjournment for some more time for me to arrange requested documents.
I am happy to discuss further with Bruce if allowed?
On 30 January 2023, as all correspondence to date had not been copied to the other side by the relevant party, the following email was sent from my Chambers to the parties:
Dear Parties,
I refer to the above matter, and to the Member Assisted Conciliation and Directions Hearing listed for this afternoon.
I note that both parties have separately emailed the Commission without copying in the other side. Please be advised that copying in the other side to all email correspondence is a requirement when communicating with Chambers, and if the other parties in the matter are not copied in, this correspondence may not be read and considered by the Deputy President. More information about communicating with Chambers can be found here: Practice note: Fair hearings | Fair Work Commission (fwc.gov.au).
Ms Brown – I note that you have requested an adjournment of this afternoon’s listing. Please outline the reasons for this request, and the adjournment length requested in reply, copying in the Applicant. This request will then be considered by the Deputy President, and a decision will be made as to whether that adjournment is granted.
Mr Langford, I note that you have emailed the commission with various comments in respect of the matter. If you wish for those comments to be read and considered by the Deputy President, please send an email to Chambers, copying in the Respondent.
I advise that, as at the time of sending this email, this afternoon’s Member Assisted Conciliation and Directions Hearing has not been vacated, and your attendance is required.
On 30 January 2023, in response to the Respondent’s request for an adjournment, the following email from the Applicant was received by my Chambers:
So far we have had had two failed conciliations where Electrical Testing Services failed to appeared or give notice or provide appropriate paperwork feedback and now want an adjournment for todays hearing.
All I wanted was a simple sit down and talk with ETS and they couldn’t do this. Poor form on there part.
They even promised to supply me with a reference when they terminated my services and even after several written request they couldn’t even supply that!
I don’t believe the excuse Electrical Testing Services have provide for the adjournment today.
As a result , I am feed up with the way Electrical Testing Services are string the whole process out – I have better things to do with my time then play there little games and as a result I wish to withdraw taking any further action.
Bruce Langford.
On 30 January 2023, as it was unclear if the Applicant was looking to discontinue his matter before the Commission, my Chambers sent the following correspondence to the parties:
Dear Mr Langford,
I refer to your correspondence below. If you wish to withdraw your matter, please fill out and return the Form F50, linked here: Notice of discontinuance (Form F50) | Fair Work Commission (fwc.gov.au).
On 30 January 2023, my Chambers sent the following further correspondence to the parties:
Dear Parties,
I refer to the above matter, and to the correspondence received from Mr Langford below.
I advise that the Member Assisted Conciliation and Directions Hearing listed for this afternoon has been vacated. Chambers awaits confirmation from the Applicant as to their discontinuance.
On 10 February 2023, having not received a response from the Applicant to the above email, my Chambers sent the following correspondence to the parties:
Dear Parties,
Chambers refers to the above matter and notes that a response has not been received to the email below.
The Applicant is directed to provide his response by no later than 4:00pm on Thursday, 16 February 2023. If no response is received by this time, the matter will be dismissed for want of prosecution
To date, no further correspondence has been received by my Chambers in the matter as requested.
Relevant Legislation
Section 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.
Consideration
The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
An order to that effect will issue with this decision.
DEPUTY PRESIDENT
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