Clayton Dolgner v The Trustee for Beco Pastoral Trust
[2024] FWC 2234
•20 AUGUST 2024
| [2024] FWC 2234 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Clayton Dolgner
v
The Trustee For Beco Pastoral Trust
(U2024/6641)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 20 AUGUST 2024 |
Application for an unfair dismissal remedy - application dismissed
This decision relates to an unfair dismissal application by Mr Clayton Dolgner (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against his former employer, The Trustee for Beco Pastoral Trust (the Respondent) filed on 11 June 2024.
On 30 July 2024, I issued directions for the filing of material. The directions included both the date and time for the conference and a requirement that the Applicant file material by no later than 4:00pm (AEST) on 13 August 2024. The Applicant failed to do so.
The matter was listed for a conference, by telephone, at 10:00am on 20 August 2024. The parties were reminded of the conference by a Notice of Listing issued from my Chambers on 30 July 2024 which, inter alia, required parties to confirm their telephone contact details and attendees at least 24 hours before the listed conference. The matter was subsequently relisted for the conference to begin at 11:00am. The contact number provided on the Applicants Form F2 filed on his behalf by his then representative was incomplete and the Applicant had further failed to comply with the requirement to notify Chambers of his contact details before the conference.
On 19 August 2024, the following email was sent from my Chambers to Mr Dolgner:
“Dear Mr Dolgner
Directions were issued on 30 July 2024.
Paragraph [4] of the Directions required you to file your material by no later than 4:00pm AEST on 13 August 2024. At the time of writing, no materials have been filed as directed and there has been no request for an extension to file submissions. Accordingly, the Deputy President directs you to provide your material, accompanied by an explanation for your apparent failure to comply with the directions by no later than 10:00am tomorrow 20 August 2024.
In the absence of any material filed by you, the matter may be determined without further reference to you. Alternatively, should the Respondent file according to s.399A of the Act, the Deputy President will be required to consider whether the matter be dismissed. If the Commission dismisses the Application, a decision must be published on the public website.
The Deputy President will address your non-compliance at the conference tomorrow, which due to emergent circumstances must commence at 11:00am tomorrow. “
No response was received from the Applicant.
On 20 August 2024, in preparation for the listed conference the following email was sent from my Chambers to the Applicant:
“Dear Mr Dolgner
It is noted that we did not receive a response to our 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.
The contact number for you provided on your Form F2 is incomplete, please provide your contact number to be used for the conference today.
The Respondent should also confirm their attendance at the conference this morning in writing to Chambers at which your non-compliance with directions will also be addressed.”
By 11:20am, on 20 August 2024, no response had been received from either party, the conference could not proceed. The following email was sent from my Chambers to the Applicant:
“Dear Mr Dolgner
It is noted that we did not receive a response to our correspondence and the conference was unable to proceed due to you failing to provide a contact number.
If you wish to proceed with your unfair dismissal application, you must make contact with us by 4:00pm (AEST/QLD) today. 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 ([email protected]).
I note that if you do not discontinue your application and the Commission dismisses it because you are not pursuing your application, a publicly available decision must be published on the Fair Work Commission’s 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.”
Again, no response from the Applicant was received by my Chambers at the time of writing this decision. The Applicant also failed to file the material as directed.
Section 587 of the Act is 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.
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.”
I am satisfied that the Applicant unreasonably failed to comply with the requirement to attend the previously listed conference and to file his materials in accordance with the directions. I consider that the failure was unreasonable for the following reasons:
(A)The Applicant has repeatedly failed to offer any reasonable explanation for his failure to comply with the directions or attend the listed conferences.
(B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress his non-compliance but has failed to do so.
My discretion to dismiss the Applicants’ unfair dismissal application under s.587 has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for his failure to comply with my directions, failure to attend a conference or failure to file materials. Further, the Applicant has failed to respond to communications from my Chambers, failed to provide an explanation for his non-compliance and failed to comply with directions to file material. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair, transparent and timely determination of the application.
For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.587.
Pursuant to s.587, the Applicant’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR778511>
0
0
0