David Walsh v Gate Gourmet Services Pty Ltd T/A Gate Gourmet

[2021] FWC 6064

[2021] FWC 6064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Walsh
v
Gate Gourmet Services Pty Ltd T/A Gate Gourmet
(U2021/7151)

DEPUTY PRESIDENT LAKE BRISBANE, 5 OCTOBER 2021

Applicant for an unfair dismissal remedy – application dismissed after applicant failed to comply with directions

[1] This decision concerns an application made by David Walsh (theApplicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth)(theAct) arising out of the termination of his employment with Gate Gourmet Services Pty Ltd T/A Gate Gourmet (theRespondent).

[2] The Applicant lodged his Form F2 Unfair Dismissal Application on 13 August 2021. He was told by the Commission that his application had been lodged outside of the statutory timeframe. He told the Commission that he had incorrectly recorded his date of dismissal and that it was in fact 21 July 2021. The matter was allocated to my Chambers for hearing and determination.

[3] On 8 September 2021, my Chambers issued a notice of listing, accompanied by several directions. That notice of listing indicated, in conjunction with a clarifying email sent the following date, noted that the Respondent was to file its Form F3 by 13 September 2021, the Applicant was to file any statements or submissions in support of his claim by 20 September 2021, that the Respondent was to do the same by 27 September 2021 and that the matter would be listed for hearing at 10am on 6 October 2021.

[4] The Respondent duly filed its Form F3 on 13 September 2021. The Applicant did not file any material by 20 September 2021. In fact, no communication had been received from the Applicant by that time.

[5] On 21 September 2021, prompted by an email from the Respondent, my Chambers wrote to the Applicant (copying the Respondent) in the following terms:

“Good afternoon

I refer to the above matter. The Deputy President’s directions required the Applicant to file their material by yesterday afternoon, however nothing has yet been received.

The Applicant is directed to provide that material, as well as a written explanation as to the circumstances around his failure to comply with the direction in writing to Chambers and copied to the Respondent, by close of business tomorrow, 22 September 2021. If the Applicant fails to file is material as directed, the application may be dismissed.”

[6] On 23 September 2021, my Chambers sent an email confirming that no material or explanation was forthcoming as directed.

[7] On 24 September 2021, the Respondent sent an email to Chambers, copying the Applicant, which stated relevantly:

“The Respondent has been directed to file material by 4pm on Monday 27 September. Without knowledge of the Applicant’s material we are unable to appropriately answer the questions as directed by the Deputy President, as the supposed circumstances for the matter are only known to the Applicant and would inform a significant part of the Respondent’s response.”

[8] Later that day, the Respondent filed a Form F1 Application seeking that the Deputy President exercise his discretion to dismiss the Applicant’s application pursuant to ss.587 and 399A of the Act. The Respondent submitted that the Applicant has failed to provide material, thus rendering his application with no reasonable prospect of success. 1 On that basis, they submitted that the Commission should dismiss the matter under s.587(1)(c) of the Act.

[9] The Respondent went on to submit that if that is insufficient, the Commission can dismiss the matter considering the following grounds under s587 and s399A or at their discretion as provided by the Act:

“a. The unfair dismissal application is frivolous and without merit as outlined in the Applicants F3 response filed on 13 September 2021;

b. The application has no reasonable prospects of success as the Respondent has not provided any material of sufficient quality or weight, in either the jurisdictional or substantive unfair dismissal matter to be able to succeed;

c. The application was not made in accordance with the Act as it was lodged out of time and accordingly has no reasonable prospects of success;

d. The Respondent has failed to comply with directions issued by Deputy President Lake on 8 September and 21 September despite being cautioned that failure to comply may be cause to dismiss his application

e. The Respondent has failed to communicate with the Commission to explain his failure to comply with directions issued by Deputy President Lake, and further not communicated with the Commission at all since 7 September 2021

f. The Respondent has been afforded sufficient time and opportunities to comply with reasonable directions of the Commission to prosecute their case but has failed to do so.”

[10] Shortly after receiving that application, my Chambers wrote to both parties indicating that:

“The Applicant has until midday on Wednesday, 29 September 2021 to file their material and an explanation as to the reason for noncompliance with the Deputy President’s directions. If no response is received by that time, the Deputy President will consider whether to dismiss the application”

[11] At the time of writing this decision, no communications have been received from the Applicant.

[12] I am satisfied that the Applicant has been given sufficient time and numerous opportunities to make contact. 2 I have concluded that in circumstances, the Applicant failed to comply with my reasonable direction and therefore, has failed to prosecute their claim. No correspondence with Chambers has been received since the filing of the Application. As indicated in Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run, a failure to provide material could render an application with no reasonable prospect of success.3 However, if that alone is insufficient, it is clear that ‘the introductory words in s.587(1) indicate, the circumstances in which the Fair Work [Commission] may dismiss an application are not limited to those matters in s.587 of the Act.’4

[13] I am satisfied that Chambers has taken appropriate steps to inform the Applicant of the consequences of failing to provide the relevant documentation. I am also satisfied that sufficient time and warning was given to comply. I find it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant’s unfair dismissal application pursuant to s.587 of the Act.

[14] Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[2011] FWA 4812.

 2   As per Richard Carter v The Hanna Group Pty Ltd[2011] FWA 31, at [6](DP Sams).

 3   Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[2011] FWA 4812.

 4   Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[2011] FWA 4812, at [11] (DP Bartel).