Cleo Campbell v MJT Group Pty Ltd
[2023] FWC 767
•31 MARCH 2023
| [2023] FWC 767 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Cleo Campbell
v
MJT Group Pty Ltd
(U2022/11707)
| DEPUTY PRESIDENT CROSS | SYDNEY, 31 MARCH 2023 |
Application for relief from unfair dismissal - s.587 - application dismissed.
The Mr Cleo Campbell (the Applicant) was employed by MJT Group Pty Ltd (the Respondent) from 6 April 2020 to his dismissal on 2 December 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 6 January 2023 (the Application).
Relevant Facts and Directions
On 31 January 2023, my Chambers issued a Notice of Listing for a Member Assisted Conciliation and Directions Hearing (first Directions Hearing), for 7 February 2023. The notice of listing contained draft directions for the filing and materials in this matter which was to be discussed at the directions hearing.
On 7 February 2023, the Directions Hearing was held. A Hearing was listed for 30 March 2023 and the Directions were issued in final form in a Notice of Listing.
On 23 February 2023, my Chambers sent an email amending the directions issued in the initial Notice of listing, whilst also notifying the Parties that the matter remained listed and the hearing would proceed.
Dear Parties,
Chambers refers to the above matter and to the attached documents filed by the Applicant on 22 February 2023. This correspondence was only sent to Chambers, and did not copy in the other side. Please ensure this email is forwarded to the other parties in this matter (copied), and all future correspondence is sent to all parties in the matter.
More information on communicating with Chambers can be found on the Fair Work Commisison’s Fair Hearing Practice Note: Practice note: Fair hearings | FWC Main Site.
Chambers notes that the submissions filed do not sufficiently respond to the Directions in terms of addressing the Applicant’s submissions by way of witness statements and/or responding to the Respondent’s Jurisdictional Objections in this matter. Chambers notes the Applicant’s situation in relation to not having had contact with their legal representatives (who have been copied to this email) and being unable to understand his requirements for the Chambers’ directions below. Unfortunately, the Commission cannot assist in the preparation of the Applicant’s material. If you require more information in relation to the current process, there are a few places where you may be able to access free information:
1.The Fair Work Commission website: Fair Work Commission | Australia's national workplace relations tribunal (fwc.gov.au)
2.Law Access NSW: Welcome to LawAccess NSW
3. Community Legal Centres: Welcome to Community Legal Centres NSW | Community Legal Centres NSW (clcnsw.org.au)
Given the current situation, the Commission is intent to vary the Directions as follows to allow the Applicant sufficient time to seek independent legal advice in preparing his submissions. Thus the amended directions are as follows:
1. Cleo Campbell (the Applicant) is directed to file with the Fair Work Commission and serve on MJT Group Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 2 March 2023.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 16 March 2023.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 23 March 2023.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 16 March 2023.
On 24 March 2023, my Chambers sent the following email to the Applicant advising him of his non-compliance through his failure to produce a reply to the Respondents submissions:
Dear Parties,
I note the Applicant has not complied with Direction 3 of the Commission’s Directions issued on 23 February 2023 (Listing Directions). Please see below Direction:
1. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 23 March 2023.
The Applicant is required to email Chambers by 4:00pm today, 24 March 2023 with their submissions and other materials in reply, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
Please note that any materials must be filed with the Commission via email to this address, being [email protected].
On the 27 March 2023, my Chambers sent the following email detailing the Applicants further non-compliance with the previous direction:
Dear Parties,
I note the Applicant has not complied with Direction 3 of the Commission’s Directions issued on 23 February 2023 (Listing Directions) as well as the updated Direction sent out on Friday 24 March 2023. Please see below Directions:
1. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 23 March 2023.
2. The Applicant is required to email Chambers by 4:00pm today, 24 March 2023 with their submissions and other materials in reply, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
Chambers directs that the Applicant is required to email Chambers by 4:00pm today, 27 March 2023 with their submissions and other materials in reply, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
Please note that any materials must be filed with the Commission via email to this address, being [email protected].
On 27 March 2023, my Chambers called the Applicant in order to pursue the reply submissions. The Applicant stated he had no wish to make a reply submission and he was also advised by my Chambers to view the Notice of Listing for the date of the hearing.
On 27 March 2023, the Applicant sent the following email in response to the inquiries investigating as to why he had failed to produce reply submissions:
I have no response thanks
On 29 March 2023, my Chambers sent the following email to all the Parties:
Dear Parties,
Chambers acknowledges that the Applicant does not wish to make reply submissions.
The hearing will proceed to take place tomorrow at 10:00AM (AEDT).
Chambers also further notes that the Applicants correspondence was only sent to Chambers and did not copy in the other side. Please ensure this email is forwarded to the other parties in this matter (copied), and all future correspondence is sent to all parties in the matter.
More information on communicating with Chambers can be found on the Fair Work Commission’s Fair Hearing Practice Note: Practice note: Fair hearings | FWC Main Site.
On 29 March 2023, the respondent sent the following email noting the inadequacies of the Applicants reply submissions:
Thank you.
Evidently, as the Applicant has not provided a valid response corresponding to our statement and documents, is that accepted as complying with the directions set out by you?
As our attendance at the scheduled hearing tomorrow is looking to be a lost cause, if the Applicant can not further comply as they have no evidence to provide against our statements and documents provided, which in turn states they have no further case against MJT Group, then we stand firm on the belief that this is a waste of our time.
On 30 March 2023, the day of the Hearing, the Applicant failed to attend and provided no prior notice of his inability to attend.
On 30 March 2023, my Chambers attempted to call the Applicant, but the call was directed to voicemail.
On 30 March 2023, my Chambers sent the following email to the Applicant enquiring into why they failed to attend the Hearing with no adequate reason or response:
Dear Parties,
The Hearing was listed for 10:00AM. To the Applicant, we have had no response from you notifying why you are running late?
Chambers requests a response explaining why you have failed to attend.
The Applicant provided no reason for failing to attend the Hearing despite multiple attempts by my Chambers to contact them.
Whether to dismiss the application
In light of the Applicant’s failure to comply with directions of the Commission and failure to attend the Hearing, it is open to the Commission to decide whether to exercise its discretion to dismiss the application for want of prosecution pursuant to s.587 of the Act.
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.
DEPUTY PRESIDENT
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