Deacon Steward v ING Bank (Australia) Limited T/A ING Direct

[2024] FWC 2489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Deacon Steward
v

ING Bank (Australia) Limited T/A ING Direct

(U2024/8682)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 13 SEPTEMBER 2024

Unfair dismissal application – application dismissed

This decision relates to an unfair dismissal application by Mr Deacon Steward (Applicant) pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act) against his employer, ING Bank (Australia) Limited (Respondent).

The Applicant contends that he was dismissed by the Respondent on 25 July 2024 in contravention of the unfair dismissal provisions under Part 3-2 of the Act.

I listed the matter for directions, by telephone, at 3:15pm on 5 September 2024 to make directions in relation to the Applicant’s unfair dismissal application. There was no appearance by or on behalf of the Applicant at the directions hearing.

Later on 5 September 2024, the Applicant was informed, in writing, that the matter had been listed for a further directions hearing, by telephone, at 8:30am on Thursday, 12 September 2024, and if the Applicant did not attend that directions hearing the matter may be dismissed without further prior notice to the Applicant. On 5 September, my Associate attempted, without success, to contact the Applicant by telephone. A message was left for the Applicant to contact my chambers. He did not do so.

There was no appearance by or on behalf of the Applicant at the directions hearing on 12 September 2024, nor has the Applicant communicated with the Fair Work Commission since that directions hearing.

For the reasons set out above and the failure on the part of the Applicant to take any steps to prosecute his unfair dismissal application, I have decided to exercise my discretion pursuant to s 587(1) of the Act to dismiss the Applicant’s unfair dismissal application against the Respondent in these proceedings. The Applicant’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an unfair dismissal application brought by Deacon Steward against ING Bank (Australia) Limited T/A ING Direct. Steward claimed that he was dismissed on 25 July 2024 without just cause or reason, in violation of the unfair dismissal provisions under Part 3-2 of the Fair Work Act 2009. Steward sought redress for what he perceived as an unjust termination of his employment. The case was listed for a directions hearing, but Steward did not appear or communicate with the Commission at any point. Despite multiple attempts by the Commission to contact Steward, including a warning about the potential dismissal of his application if he failed to attend the second directions hearing, Steward did not take any steps to proceed with his case.

The legal issues before the Commission centred on whether Steward's dismissal was indeed unfair and if his failure to participate in the proceedings justified the dismissal of his application. The primary issue was whether the Commission should exercise its discretion to dismiss Steward's application under section 587(1) of the Act due to his lack of participation. The Commission had to balance the procedural fairness to Steward against the need to efficiently manage its caseload and ensure that cases proceed in a timely and orderly manner.

In dismissing Steward's application, the Deputy President concluded that Steward's failure to appear or communicate with the Commission, despite multiple opportunities and warnings, warranted the exercise of the Commission's discretion to dismiss the application. The Deputy President noted that Steward had not demonstrated any genuine attempt to participate in the proceedings, which was a fundamental requirement for the case to proceed. Consequently, the Commission dismissed the unfair dismissal application, highlighting the importance of procedural engagement in employment disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established