Freight and Logistics Queensland Pty Ltd T/A CNQ Freight Services v Iain Lockyear

[2021] FWC 1140

[2021] FWC 1140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Freight and Logistics Queensland Pty Ltd T/A CNQ Freight Services
v
Iain Lockyear
(U2020/11234)

DEPUTY PRESIDENT LAKE BRISBANE, 2 MARCH 2021

Applicant under s 399A – application dismissed – s 399A.

[1] This decision concerns an application by Freight and Logistics Queensland Pty Ltd T/A CNQ Freight Services (the Applicant) to dismiss Mr Lockyear’s (the Respondent) unfair dismissal claim under s 399A of the Fair Work Act 2009 (the Act).

[2] Following receipt of the Form 1 application by the Applicant, I sought submissions from both parties and conducted an interlocutory hearing on 26 February 2021.

[3] The Applicant in their Form 1 outlined numerous instances of non-compliance and contended that Mr Lockyear’s unfair dismissal application should be dismissed. In response, the Respondent outlined that he had limited literacy skills and contended he had provided an explanation, on at least one occasion, for his non-compliance.

[4] I observe the guidance of the Full Bench: 1

[30] We observe at the outset that the power to dismiss an application is to be exercised cautiously. As the Full Bench observed in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station:

‘The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly; a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard.’

[5] I have concluded that in circumstances, while the Applicant failed to comply with several reasonable directions, that discretion should be exercised cautiously. I do not find it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant’s unfair dismissal application pursuant to s 399A.

[6] The matter is scheduled to be heard on the merits on 8 March 2021.

DEPUTY PRESIDENT

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 1   Iain Kenneth Lockyear v Graeme Cox[2021] FWCFB 875, [30].