Corey Simmons v Leap In! Australia Ltd T/A Leap In! & Shayne Lawrence

[2024] FWC 1894

[2024] FWC 1894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Corey Simmons
v

Leap In! Australia Ltd T/A Leap In! & Shayne Lawrence

(U2024/688)

COMMISSIONER HUNT BRISBANE, 19 JULY 2024

Application for an unfair dismissal remedy

1. On 22 May 2024, Mr Corey Simmons made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with Leap In! Australia Ltd T/A Leap In! (Leap In!) and that his dismissal was harsh, unjust or unreasonable.

1. In its Form F3 Employer Response, Leap In! objected to the application on the jurisdictional ground that it was not Mr Simmons’ employer.

1. I issued directions requiring the parties to file material by certain dates. Mr Simmons’ material was due second on 18 March 2024, however I had not received any material from Mr Simmons. Accordingly, my chambers sent correspondence to Mr Simmons enquiring why his material was not filed by the due date. In the absence of any response, I proceeded with the hearing listed on 26 March 2024. At the hearing, Mr Simmons agreed that Leap In! was not his employer and rather, his employer was Mr Shayne Lawrence to whom he had provided care to. I have excused Leap In! from the application. 

1. I caused my chambers to contact Mr Lawrence to provide him with a copy of Mr Simmons’ application and invited him to file a Form F3 Employer Response. Mr Lawrence filed a response also objecting to the application on the basis that he was not Mr Simmons’ employer.

1. On 13 June 2024, I directed Mr Simmons to produce several documents to ascertain whether Mr Simmons was a sole trader or contractor. I provided Mr Simmons until 20 June 2024 to produce such documents.

1. Mr Simmons failed to produce the documents as sought, and my chambers enquired why the requested documents were not produced, seeking a response by 27 June 2024. Again, Mr Simmons failed to respond, and I listed the matter for a Non-Compliance Hearing on 8 July 2024.

1. On 8 July 2024, my Associate telephoned Mr Simmons, who advised that he was unwell.  Accordingly, the Non-Compliance Hearing was adjourned to 4:00pm on 12 July 2024. Mr Simmons was notified of the adjourned Hearing date and time by phone and was advised that should he require a further adjournment that he notifies chambers prior to the listing. A copy of the emails directing Mr Simmons to produce documents was resent to Mr Simmons with the Notice of Listing.

1. On 12 July 2024, Mr Simmons emailed my chambers advising he was unable to open of the files and requested that they be resent. The emails were resent to Mr Simmons in PDF format.

1. At 4:00pm on 12 July 2024, my Associate was unable to reach Mr Simmons for the Non-Compliance Hearing. Correspondence was sent to Mr Simmons directing him to advise by 4:00pm on 15 July 2024 why he didn’t attend the Non-Compliance Hearing or request an adjournment.  Mr Simmons was informed that if he failed to provide a response, or his response is not adequate, I would likely dismiss his application for want of prosecution.  If Mr Simmons had any medical evidence to support his non-attendance, he was directed to provide the medical evidence.

1. Mr Simmons has not made any further contact with my chambers.  

1. Section 587 of the Act provides 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.”

1. After considering the numerous attempts to engage Mr Simmons in his application to the Commission, including his failure to produce documents as directed and attend the Non-Compliance Hearing without a reasonable explanation, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to s.587(3)(a) of the Act. Mr Simmons has demonstrated an unwillingness to prosecute his own application and consequently I find that the application has no reasonable prospects of success.

1. An Order to this effect will be issued with this decision.

COMMISSIONER

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