Christopher Daniel Marshall v Bright Lights Agribusiness Pty Ltd

[2024] FWC 3150

[2024] FWC 3150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christopher Daniel Marshall
v

Bright Lights Agribusiness Pty Ltd.

(U2024/9031)

COMMISSIONER FOX MELBOURNE, 21 NOVEMBER 2024

Application for an unfair dismissal remedy – Application dismissed pursuant to s.587 of the Fair Work Act 2009.

1. On 5 August 2024, Mr Christopher Daniel Marshall (the Applicant) filed a Form F2 – Unfair dismissal application (Form F2) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application was named as Bright Lights Agribusiness Pty Ltd (the Respondent).

1. The matter was listed for staff conciliation on 13 September 2024. The Applicant did not attend the staff conciliation or respond to the Commission’s attempts to contact him.

1. The matter was subsequently referred to me for determination.

1. The matter was listed for a Mention/Conference on 15 October 2024. A Notice of Listing was sent to parties on 9 October 2024.

1. Directions were issued to the parties prior to the Mention on 15 October 2024. These Directions outlined the timeline for the filing and service of material ahead of the Determinative Conference/Hearing, listed for 22 November 2024. The correspondence attaching these Directions again noted that the matter was listed for a Mention that day and advised the Applicant that if he did not attend, the Mention would proceed in his absence.

1. Prior to the commencement of the Mention/Conference, my Chambers attempted to contact the Applicant via his nominated mobile phone number twice. There was no capacity to leave a voice message at that time.

1. The Applicant did not attend the Mention, and the listing proceeded in his absence. At the Mention/Conference, I went through the Directions issued to parties and the consequences of non-compliance with Directions.

1. The Directions required the Applicant to file an Outline of Argument, Statement of Evidence and Document List by 3:00PM on 29 October 2024. The Applicant did not comply with the Directions. At 5:32PM on 1 November 2024, my Chambers sent correspondence to notify the Applicant that no material had been received from him. This correspondence further alerted the Applicant that there were consequences for the failure to comply with Directions, including that his remedy for unfair dismissal application may be dismissed.

1. The Applicant did not respond to this correspondence.

1. On 7 November 2024, a Notice of Listing was issued to parties which notified the parties that the matter was listed for a Non-Compliance Hearing at 2:00PM the next day, 8 November 2024. In the correspondence attaching the Notice of Listing, the Applicant was advised that if he did not attend the Non-Compliance Hearing, then the Applicant was at risk of his matter being dismissed.

1. At 5:24PM on 7 November 2024, my Chambers sent further correspondence requesting that the Applicant confirm his attendance and advised him that if he did not attend, the Hearing would proceed in his absence, and further, there was a risk that the matter may be dismissed. My Chambers again attempted to contact the Applicant by telephone at 5:29PM on 7 November 2024, but the Applicant could not be reached. A voicemail was left advising the Applicant that if he did not attend the Non-Compliance Hearing, the matter may be dismissed without hearing from the Applicant.

1. Prior to the Non-Compliance Hearing at 2:00PM on 8 November 2024, my Chambers sent a further email to the Applicant at 1:54PM advising that the matter may be dismissed if he did not attend. My Chambers subsequently made two telephone calls to the Applicant’s nominated telephone number at 1:59PM and 2:02PM, neither of which were answered. A message was left each time advising the Applicant that dismissal of the matter may be a consequence of non-compliance and requesting that the Applicant contact Chambers as soon as possible.

1. The Applicant did not attend the Non-Compliance Hearing.

1. Following the Hearing, my Chambers sent correspondence to the Applicant on 8 November 2024 providing a chronology of the Applicant’s failure to comply with Directions and attend listings before the Commission. I put the Applicant on notice that I was considering dismissing his application under s.587 of the Act. Given the seriousness of such a dismissal, I provided the Applicant with an opportunity to provide submissions as to why I should not dismiss his application for want of prosecution. The Applicant was directed to provide any submissions and material as to why I should not dismiss the application by 3:00PM on 11 November 2024.

1. This correspondence also informed the Applicant that his application would be dismissed without further notice if he did not respond to the correspondence.

1. The Applicant did not provide a response to this correspondence.

Consideration

1. Section 587 of the Act outlines as follows:

587  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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application.

1. Section 593 of the Act provides that the Commission is not required to hold a Hearing except as provided by the Act. As no submissions have been made by the Applicant, I do not consider there are contested facts which require a Hearing. I therefore determine that it is appropriate to determine the matter on the papers.

1. The power to dismiss an application under s.587 is not limited to the grounds specified in s.587(1) of the Act.[1] Previous decisions of this Commission have relied on the introductory words of s.587(1) of the Act to dismiss a matter where the applicant has failed to prosecute their case.[2] The Full Bench in Peter Viavattene v Health Care Australia[3] has outlined that there is no requirement for the Commission to persevere with a matter where the applicant’s conduct has clearly demonstrated an unwillingness to participate in proceedings commenced at their own initiative.

1. The Commission has used the nominated telephone number and email address provided by the Applicant in his Form F2 and the Applicant has had multiple opportunities to engage in the Commission’s processes and prosecute his case. Despite these opportunities, the Applicant has failed to comply with Directions or attend listings of the Commission, nor has he requested an extension to provide material in compliance with Directions, despite numerous attempts by my Chambers to contact him.

1. In all the circumstances, I consider it appropriate to exercise my discretion under s.587(1) to dismiss the application on the Commission’s own initiative. I am satisfied that the Applicant has, by consistently not engaging with Commission processes or complying with my Directions, failed to prosecute his case and has demonstrated an unwillingness to participate in proceedings.

1. As I have determined it appropriate to exercise my discretion, application U2024/9031is dismissed. An Order to this effect will be issued with this Decision.[4]

COMMISSIONER

Determined on the papers.

[1] Norbert Fluri v BHP Billiton Nickel West Pty Ltd[2022] FWCFB 35 [10].

[2] Ibid.

[3] [2013] FWCFB 2532 [39].

[4] PR781463.

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