Daniel Smart v Rg Cars Pty Ltd
[2022] FWC 1923
•22 JULY 2022
| [2022] FWC 1923 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Smart
v
Rg Cars Pty Ltd
(U2022/4593)
| COMMISSIONER HUNT | BRISBANE, 22 JULY 2022 |
Application for an unfair dismissal remedy – applicant shown no willingness to prosecute case – failure to attend the conference – non-compliance with Commission directions – application dismissed.
On 20 April 2022, Mr Daniel Smart 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 Rg Cars Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.
Mr Smart nominated 31 March 2022 as the date of dismissal. In a Form F3 completed by the Respondent, it is accepted that the dismissal date was 31 March 2022. Accordingly, the application has been made within the 21-day time limit prescribed by the Act.
On 16 June 2022, I issued directions requiring the parties to file material by certain dates and notified the parties of a telephone conference to be convened on 23 June 2022.
Mr Smart did not participate in the telephone conference on 23 June 2022, despite numerous attempts by my Associate to contact him. Correspondence was emailed to the parties from my chambers reminding Mr Smart of his obligation to file material by no later than 7 July 2022, pursuant to the directions issued by me.
On 4 July 2022, Mr Smart sent the following email to my chambers, and did not copy in the Respondent:
“To whom it may concern , thank you for your email . I suffer from severe depression and anxiety and attending a hearing is very difficult given the confrontational nature of the issue. I request that the matter be heard in my absence to avoid any further stress and effect on my mental health.”
Section 397 of the Act requires the Commission to hold a conference or hearing in relation to an unfair dismissal application to the extent that the matter involves facts the existence of which is in dispute. Having considered the Form F2 and Form F3, I am satisfied there are disputed facts between the parties and a conference or hearing is required to determine the application. This application cannot, with the information before me, be determined on the papers.
On 5 July 2022, I requested Mr Smart provide a medical certificate advising of his medical condition, noting whether he could participate in a matter before the Commission and to what extent, including by video or telephone. Mr Smart did not provide a medical certificate or reply to my communication.
On 8 July 2022, I provided an opportunity for Mr Smart to communicate with my chambers up until 13 July 2022, advising that if he did not, the application may be dismissed without further notice. Mr Smart did not reply to my communication.
On 18 July 2022, I informed the parties the matter would be listed for a Non-Compliance Hearing on 21 July 2022. Mr Smart was informed that failure to participate in the Non-Compliance Hearing may have consequences for his application, and I may decide to dismiss the application for want of prosecution, in accordance with section 587 of the Act.
On 21 July 2022, I conducted a telephone Non-Compliance Hearing. Numerous attempts were made by my Associate to contact Mr Smart, without success. Mr Aghakhani, Retail Operations Manager appeared for the Respondent. I informed Mr Aghakhani of the numerous attempts made to contact Mr Smart, without success and indicated my preliminary view was that I would dismiss the application pursuant to s.587 of the Act.
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.”
After considering the numerous attempts to engage Mr Smart in his application to the Commission, including his failure to attend the conference and Non-Compliance Hearing without a reasonable explanation, and without any medical evidence to support Mr Smart’s assertion that he has a medical condition, 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 Smart has demonstrated an unwillingness to prosecute his own application and consequently I find that the application has no reasonable prospects of success.
An Order to this effect will be issued with this decision.
COMMISSIONER
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