Chris Alexander Green v Services of Top Cut Foods (WA) Pty Limited Summary

[2022] FWC 2770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Chris Alexander Green
v

Services Of Top Cut Foods (WA) Pty Limited

(U2022/6891)

DEPUTY PRESIDENT BEAUMONT

PERTH, 20 OCTOBER 2022

Application for an unfair dismissal remedy

Mr Chris Alexander Green (the Applicant) made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant had worked for Service Of Top Cut Foods (WA) Pty Ltd (the Respondent) as a manager since 3 September 2020. However, on 16 June 2022, the Applicant’s employment ended. The Applicant says he was dismissed. The Respondent says the Applicant voluntarily resigned. The matter was listed for a hearing on 20 October 2022.

This published decision reflects the decision I gave ex tempore on 20 October 2022 with corrections for grammatical, syntactical and any other insignificant errors.

On the morning of 20 October 2022, my Chambers and Ms Dale, the Respondent’s Human Resources Manager, were copied into an e-mail that was received at 7:46am from the e-mail address chrisg74@gmail.com, which displays as ‘Chris Green’. It appears to be the e-mail address that has been utilised by the Applicant for correspondence for the purpose of these proceedings. It read as follows:

Morning
I have since decided not to proceed at this time.
Thankyou.
Chris Green

It could be that the Commission considers that this e-mail indicates the matter has been discontinued by the Applicant. I am content to take this approach. However, if I am wrong about that, then pursuant to s 587(1)(c) of the Act the application is dismissed on the basis it has no reasonable prospect of success.

I make this decision in light of the e-mail received this morning and the Applicant’s non-attendance in circumstances where he was contacted multiple times this morning to attend the hearing and notwithstanding has not responded on his phone. I also note that leading up to the hearing there was correspondence concerning the attendance of witnesses, which the Applicant sent communications in respect to. Notwithstanding, he left it until this morning to send the e-mail to say that he was not going to be attending the hearing.

Conclusion

Consequently, I am content to dismiss this application under s 587(1)(c) of the Act and an accompanying Order[1] is issued to this effect.

DEPUTY PRESIDENT

Appearances:

Mr V. Elias for the Respondent.

Hearing details:

Thursday 20 October 2022
Video (via Microsoft Teams)

Final written submissions:

Applicant – 21 September 2022

Respondent – 4 October 2022

[1] PR747052.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Chris Alexander Green lodged an application for an unfair dismissal remedy against his former employer, Services Of Top Cut Foods (WA) Pty Limited, claiming that his employment was terminated without justification. The case was heard by the Fair Work Commission, a tribunal under the Fair Work Act 2009. The Applicant alleged that he was dismissed on 16 June 2022, while the Respondent maintained that he had voluntarily resigned. The legal issues before the court were whether the dismissal was indeed unfair and if the Applicant had genuinely resigned.

The Deputy President, Beaumont, dismissed the application, finding that the Applicant had effectively withdrawn his claim. This conclusion was drawn from an email received on the morning of the hearing, where the Applicant stated that he had decided not to proceed. The Deputy President considered this email as evidence of the Applicant's intent to discontinue the proceedings. Additionally, the Applicant's failure to attend the hearing, despite multiple communications and warnings, further supported the decision. The Deputy President also noted that the Applicant had been actively involved in correspondence concerning the attendance of witnesses but had left it until the last minute to withdraw his application.

Consequently, the Deputy President dismissed the application under section 587(1)(c) of the Act, which allows for the dismissal of proceedings if they have no reasonable prospect of success. An order was issued to this effect. The court found that the application was dismissed due to the Applicant's withdrawal and lack of reasonable prospects for success.

Chris Alexander Green v Services of Top Cut Foods (WA) Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established