Christopher Gore v Monaro Mix Specified Concrete Pty Ltd

[2021] FWC 6214

[2021] FWC 6214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Gore
v
Monaro Mix Specified Concrete Pty Ltd
(U2020/12759)

DEPUTY PRESIDENT DEAN CANBERRA, 1 NOVEMBER 2021

Application for an unfair dismissal remedy – failure to prosecute application – application dismissed.

[1] This decision concerns an application made by Mr Christopher Gore pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his alleged unfair dismissal by Monaro Mix Specified Concrete Pty Ltd (the Respondent).

[2] From the time his application was lodged on 22 September 2020, Mr Gore’s solicitors, Baker Deane & Nutt Lawyers (BDN Lawyers), have been granted multiple extensions and adjournments by reason of Mr Gore’s alleged incapacity to give instructions.

[3] For the reasons set out below, I have decided to dismiss Mr Gore’s application for want of prosecution.

History of Mr Gore’s application

[4] Mr Gore’s application was initially listed for hearing on 4 and 5 February 2021. Directions had been issued requiring Mr Gore to file and serve his submissions and evidence by 16 December 2020 and the Respondent to file and serve its submissions in reply and evidence by 20 January 2021.

[5] On 8 December 2020 Ms White of BDN Lawyers wrote to the Commission seeking an extension of time for the filing of Mr Gore’s material and seeking the hearing be postponed. Ms White explained that the parties had had settlement discussions resulting in a delay in preparing the material.

[6] The matter was subsequently relisted for hearing on 24 and 25 February 2021. Directions were amended to allow Mr Gore until 11 January 2021 to file submissions. That time was further extended to 19 January.

[7] On 19 January 2021 Ms White wrote to advise that Mr Gore was unwell and unable to give instructions. Ms White sought a further four week extension and provided in support of that request a letter from Rutledge Family Medical Centre dated 2 February 2021 stating that Mr Gore was “unfit to attend court and that any legal processes should be postponed until at least the following month”. On 8 February 2021 the Commission also received a report from Mr Gore’s treating psychologist. The report indicated that Mr Gore had no current cognitive capacity to instruct his lawyers and would unlikely to be able to give meaningful evidence or testimony.

[8] Having regard to the medical evidence provided, I determined to vacate the hearing scheduled for 24 and 25 February 2021 and directed Mr Gore’s solicitors to provide an update by 15 March 2021 including an indication as to when Mr Gore would be fit to participate in a hearing.

[9] The update was not received until 24 March 2021 and in that correspondence Ms White sought a further extension. A further letter from Rutledge Family Medical Centre was provided stating that Mr Gore was not well enough to participate in court proceedings.

[10] In response, the Commission sent correspondence to Ms White noting that the medical certificate which simply stated that Mr Gore “will not be well enough in the near future” was of little assistance. Ms White was asked to provide a detailed report from Mr Gore’s treating psychologist as to when he might be fit to participate.

[11] On 12 May 2021, the Commission received email correspondence from the Respondent’s representative, Ms Rafferty. Ms Rafferty noted that eight months had elapsed since Mr Gore commenced the proceedings. She sought, on behalf of the Respondent, that the Commission deal ‘on the papers’ with the Respondent’s jurisdictional objection as to whether the dismissal was a case of genuine redundancy.

[12] This was opposed by Ms White on the basis that Mr Gore was unwell and had no capacity to instruct.

[13] On 3 June 2021 I conducted a conference by telephone to discuss the future conduct of the matter. The conference was attended by Ms White and Ms A Costin of Counsel for the Respondent. Ms White expressed frustration as to the difficulty in obtaining instructions from Mr Gore and sought a further six week adjournment to allow her to seek clarity from Mr Gore’s treating doctor on the level of his capacity.

[14] At the conclusion of the conference, I determined to adjourn these proceedings for six weeks by which time Ms White was required to provide a medical report specifying when Mr Gore would be fit to participate in these proceedings. Ms White was put on notice that if the application was unlikely to progress in the foreseeable future, the Commission may consider dismissing the application. The parties were advised that a further conference would be conducted on 19 July 2021.

[15] On 1 July 2021, Baker Deane & Nutt Lawyers filed a Notice of Representative Ceasing to Act.

[16] On 15 July 2021, an email was received from Mr Gore in the following terms:

“I have a claim against Monaro Mix Concrete Pty Ltd for psychological & emotional damage caused at my previous place of employment.

I have been advised to email the Fair Work Commission a current medical certificate (attached). I am unfit to attend any hearings at this point in time.

My lawyer has advised they can no longer represent me and I have been told there is a hearing scheduled for the 19th July 2021. Because I am medically unfit to attend or even comprehend where my claim is up to or what I am supposed to do, can I please request that the hearing be postponed until I am able to get some treatment for my mental health.”

[17] Later on 15 July 2021, the Commission sent an email to the parties advising that the conference on 19 July 2021 would be vacated and relisted for 13 September 2021 to allow Mr Gore further time to receive treatment he had referred to in his correspondence.

[18] At the conference on 13 September 2021 attended by Mr Gore, Ms Costin and Ms Rafferty, the parties engaged in settlement discussions. The conference was adjourned on the basis that the parties were to have further discussions and inform the Commission the outcome of those discussions. Mr Gore was advised of the requirements for him to participate in the proceedings in the event that the matter did not settle. It should be noted that at no time during the conference did Mr Gore indicate that he was unfit to participate in any forthcoming proceedings.

[19] On 28 September 2021, Ms Rafferty informed the Commission that the parties had failed to reach agreement and sought a relisting of the matter. On 30 September 2021 the parties were advised that the matter would proceed to a hearing on 25 November 2021. Directions were issued for the filing of submissions and evidence by the parties.

[20] The Directions required Mr Gore to file and serve his material by 21 October 2021. Mr Gore did not file any material nor seek an extension to do so.

[21] On 22 October 2021 the Commission wrote to Mr Gore concerning his non-compliance with the Directions. Mr Gore was advised that if he intended to proceed with his application, he must provide his material by 25 October 2021 or that his application will be dismissed.

[22] Mr Gore did not contact the Commission nor file any material.

[23] Section 587 of the Act provides the Commission with a broad discretion to dismiss an application. It reads:

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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[24] I am satisfied that given the many concessions made to Mr Gore, he has been afforded ample opportunity to present his case but has not done so. In failing to comply with directions and failing to respond to the Commission’s correspondence, Mr Gore has not demonstrated an intention to pursue his unfair dismissal application and the long delay has caused prejudice to the Respondent. Having regard to the history of the matter and on the basis of the principle of a fair go all round applying to both parties, I dismiss the application for want of prosecution pursuant to s.587 of the Act.

[25] An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

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