Cooper Hickson-Brooks v Formold Services Pty Ltd Atf Cbls Family Trust
[2024] FWC 12
•3 JANUARY 2024
| [2024] FWC 12 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Cooper Hickson-Brooks
v
Formold Services Pty Ltd Atf Cbls Family Trust
(U2023/11206)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 3 JANUARY 2024 |
Application for an unfair dismissal remedy – non-compliant applicant – s 587 motion to dismiss – application dismissed
These are published reasons for a decision delivered ex tempore on 2 January 2024.
On 14 November 2023 Mr Cooper Hickson-Brooks (Mr Hickson-Brooks or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against his former employer Formold Services Pty Ltd as trading for CBLS Family Trust (ACN 14618978) (Formold or the respondent).
Upon making the application Mr Hickson-Brooks was represented by Ms Melissa Brooks (the applicant’s representative).
Formold oppose the application.
Background
The matter was listed for conciliation before a Commission staff member on the morning of 13 December 2023. The respondent attended. Neither the applicant nor his representative attended.
On the afternoon of 13 December 2023 the conciliator was advised by email from the applicant’s representative that the applicant did not attend the conciliation as “it would not have looked good” taking time off from a new job. Neither the applicant nor the applicant’s representative requested a rescheduling of the conciliation despite the conciliator advising of that option. On 16 December 2023 the applicant’s representative advised the conciliator by email “Did reply to you. I can send screenshots as proof if needed”.
The matter was then allocated to me.
On 28 December 2023 I conducted a directions hearing.
Formold attended. Neither Mr Hickson-Brooks nor his representative attended. The respondent sought that the application be summarily dismissed on the ground of non-attendance. The directions hearing was unable to proceed further. It was adjourned to 2 January 2024.
I issued the following directions on 28 December 2023:
“NOTING THAT:
· Mr Cooper Hickson-Brooks (the applicant) failed, without explanation, to attend a directions hearing which had been scheduled before me on 28 December 2023 in circumstances where he had earlier failed to attend a conciliation on 13 December 2023 which had been listed by a Commission staff conciliator; and
· On 22 December 2023 Formold Services Pty Ltd Atf Cbls Family Trust (the respondent), by email (confirmed orally by its representative at the directions hearing on 28 December 2023) sought that the application be struck out having regard to the aforementioned non-attendances:
THE COMMISSION DIRECTS as follows:
[1] This matter is listed for resumed Directions Hearing and non-compliance conference before Deputy President Anderson at 2:00pm (ACDT) on Tuesday 2 January 2024 by video. A Notice of Listing is attached.
[2] The applicant is DIRECTED to attend the resumed Directions Hearing and non-compliance conference personally (with or without a representative) by video per the details contained in the Notice of Listing.
[3] The applicant is DIRECTED to provide a written explanation to the Commission (copied to the respondent) of his reason for non-attendance at the 28 December 2023 directions hearing by close of business (5.00pm ACDT) on Friday 29 December 2023.
[4] If the applicant wishes to discontinue his application in advance of the resumed directions and non-compliance hearing on 2 January 2024, he may do so by written notice to the Commission, in which case the obligations under these directions will cease to apply.
[5] Non-compliance with these directions may disadvantage the applicant. The applicant is advised that should the applicant not respond to these directions as required, or not prosecute his application in a manner considered by the Commission to meet the minimum necessary obligations of a litigant, the Commission may on the employer’s application (s 399A) or of its own motion (s 587) further consider whether the application should be summarily dismissed without any further proceedings or notice and make a decision on that question.
[6] I grant both parties liberty to apply should further or amended directions be sought, consistent with the efficient conduct of proceedings.” (emphasis in original)
The Directions were sent to Mr Hickson-Brooks to his last advised email address, as well as to his representative.
Mr Hickson-Brooks failed to provide a written explanation to the Commission (copied to the respondent) of his reason for non-attendance at the 28 December 2023 directions hearing as required by Direction [3] above.
At 2.00pm on 2 January 2024 I conducted the re-scheduled directions and non-compliance hearing.
The respondent attended.
Mr Hickson-Brooks failed to attend the resumed hearing on 2 January 2024 as required by Direction [2] above. Nor did the applicant’s representative appear. No advance notice was provided by Mr Hickson-Brooks or his representative of the applicant’s non-attendance nor was a request for rescheduling made.
At 1.57pm on 2 January 2024 (immediately prior to the time the hearing was listed to commence) my Associate telephoned Mr Hickson-Brooks endeavouring to alert him to the hearing and that he had been directed to attend. The call was not answered.
At the hearing on 2 January 2024 the respondent expressed continuing frustration at having to deal with the matter in circumstances where Mr Hickson-Brooks had repeatedly not attended. It repeated its view that the application should be summarily dismissed.
After hearing the respondent and considering the matter, I determined that the application be dismissed under s 587 on the ground that it is not being actively prosecuted by Mr Hickson-Brooks in accordance with minimum obligations required of an applicant and thus has no reasonable prospects of success. I ordered accordingly.
The following are my reasons.
Consideration
Section 587 provides:
“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), 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.” (notes omitted)
The last communication the Commission received from Mr Hickson-Brooks was the email by his representative to the staff conciliator on 13 and 16 December 2023. No communication has been made since the application has been referred to me in light of the conciliation not proceeding and its rescheduling not being requested.
More particularly, neither Mr Hickson-Brooks nor his representative attended proceedings before me on 28 December 2023 or 2 January 2024 despite being sent the relevant Notices of Listings. Further, neither provided advance notice of an inability to attend or otherwise been responsive to the Notices of Listing or related directions.
Thus, the applicant’s failure to attend or be responsive has put both the Commission and the employer to unproductive cost and effort and inhibited the efficient conduct of the application.
Mr Hickson-Brook’s failure to attend the hearing on 2 January 2024 is a serious matter because it followed his failure to attend the week prior and was in breach of a Direction [2] to attend. This weighs in favour of dismissing the application under s 587.
The breach of Direction [3] is also material given that Mr Hickson-Brooks has provided no explanation to the Commission or the respondent for the non-attendance on 28 December 2023 despite being directed to do so. This also weighs in favour of dismissing the application under s 587.
It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. These are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free.
Mr Hickson-Brooks was put on notice by my directions of 28 December 2023 that his application was at risk of being summarily dismissed yet he has still failed to be responsive or compliant.
I was satisfied, in light of Mr Hickson-Brooks’s non-compliance that his application had no reasonable prospects of success as it was not being actively prosecuted to a minimum required level. Section 587 was enlivened.
There were no discretionary reasons not to exercise the power on the Commission’s own motion. The employer supported dismissal on this basis. Mr Hickson-Brooks was provided an opportunity to be heard on the question and to regularise the conduct of his application but failed to do so.
Conclusion
Mr Hickson-Brooks’s application U2023/11206 was dismissed under s 587. An order was made at the 2 January 2024 hearing and a formal Order[1] to this effect is issued in conjunction with the publication of these reasons.
In light of the above, there is no utility in considering the respondent’s related application to summarily dismiss this proceeding.
DEPUTY PRESIDENT
Appearances:
No appearance by the applicant.
Ms L Mold for the respondent.
Hearing details:
2024.
Adelaide (via video)
January 2.
[1] PR769918
Printed by authority of the Commonwealth Government Printer
<PR769916>
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