Damien Long v Transit Systems West Pty Ltd

[2019] FWC 4213

[2019] FWC 4213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s. 394—Unfair dismissal

Damien Long
v
Transit Systems West Pty Ltd
(U2019/5083)

DEPUTY PRESIDENT BOYCE SYDNEY, 19 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 6 May 2019, Mr Damien Long (Applicant) lodged an application with the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (Act).

[2] The Applicant was employed by Transit Systems West Pty Ltd (Respondent). That employment relationship is said to have begun on 1 August 2018 and was terminated by the Respondent on 15 April 2019.

[3] On 18 June 2019, I convened a Directions hearing in order to program dates for submissions and schedule a date to hear the matter. In attendance was Ms K Presdee from the Australian Manufacturing Workers’ Union (AMWU), who appeared on behalf of the Applicant. Mr M Kent, General Counsel, appeared on behalf of the Respondent. The Applicant himself, however, did not attend.

[4] During the Directions hearing, I inquired with Ms Presdee as to how she wanted the matter to proceed. Ms Presdee reiterated that she was without instruction and could not comment.

[5] I made the same inquiry with Mr Kent, who sought to have the matter struck out for want of due prosecution.

[6] As I stated during that Directions hearing, and for the reasons provided below, I have determined to dismiss this matter pursuant to s.587 of the Act.

Background

[7] The relevant events are as follows:

(a) As stated at [1] above, on 6 May 2019, the Applicant lodged his application with the Commission. That application was signed by Ms Presdee acting in the capacity of a legal officer for the AMWU.

(b) On 21 May 2019, the Commission notified the Respondent of the matter. On the same day, both the Applicant and Respondent were issued a Notice of Listing, informing them that the matter was listed for Conciliation, by Telephone, before a Fair Work Commission conciliator on 6 June 2019.

(c) On 3 June 2019, the Respondent filed a Form F3 in response to the Applicant’s application.

(d) On 6 June 2019, the Commission attempted to contact the Applicant by telephone in order to join him to the Conciliation. The Applicant, however, was uncontactable at that time. The Conciliation did not proceed on that basis.

(e) On 13 June 2019, the Applicant and Respondent were issued a Notice of Listing, informing them that the matter was listed for Directions, by Telephone, before myself.

(f) On 14 June 2019, the Applicant and Respondent were issued copies of proposed Directions in this matter by my Chambers.

(g) On 18 June 2019, I convened the Directions hearing, as described between [3] and [5] above. Again, it is noted that the Applicant neither attended the Directions hearing, nor provided any instruction to his representative regarding the proposed Directions (or regarding the matter at all).

Reason for dismissing the matter

[8] Section 399A of the Act provides for when the Commission may dismiss an application for an unfair dismissal remedy:

“Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application. ”

[9] The Applicant has, on two occasions, failed to attend a conference conducted by the Commission. Namely, he failed to attend the conciliation listed for 6 June 2019, and he failed to attend the Directions hearing on 18 June 2019 (or, at least, provide instructions to his representative to properly attend in his absence).

[10] It is apparent that the Applicant is not interested in prosecuting his claim because he has, to date, made no real effort to engage with the Commission’s processes or communicate his position beyond his initial application.

[11] Further, Ms Presdee informed the Commission during the Directions hearing that she had made “daily” attempts to obtain instructions from the Applicant but those attempts were to no event. The Applicant’s failure to communicate with his representative at all, let alone provide instruction since Directions were issued, only further demonstrates a lack of serious engagement with this matter.

[12] The Applicant remains uncontactable by both the Commission and his representative. He has not engaged his claim for an unfair dismissal remedy with any seriousness that would warrant the Commission spending further resources in allowing the claim to continue.

[13] Moreover, the Respondent will be subject to undue prejudice in having to dedicate time and resources defending a claim in circumstances where the Applicant does not appear to press his claim.

Conclusion

[14] For the reasons stated above, I have determined to dismiss this matter pursuant to s.399A of the Act.

[15] An order to that effect is to follow.

DEPUTY PRESIDENT

Appearances:

Ms K Presdee (AMWU), for the Applicant.

Mr M Kent, for the Respondent

Hearing details:

In Chambers (by telephone) on 18 June 2019

Printed by authority of the Commonwealth Government Printer

<PR709453>