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

Printed by authority of the Commonwealth Government Printer

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

CaseChat Overview and Summary

The case of Freight and Logistics Queensland Pty Ltd T/A CNQ Freight Services v Iain Lockyear involved a dispute where the applicant, Freight and Logistics Queensland Pty Ltd, sought to recover an amount under section 399A of the relevant legislation. The applicant, trading as CNQ Freight Services, alleged that the respondent, Iain Lockyear, owed them money due to unpaid services provided. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT). The tribunal was tasked with determining whether the applicant was entitled to the amount claimed under section 399A and if the respondent had any valid defences or counterclaims.

The primary legal issue before the tribunal was whether the applicant could substantiate its claim under section 399A. This required the applicant to demonstrate that the respondent had not paid for services rendered, as alleged, and that the amount claimed was reasonable and justified. The tribunal also had to consider if the respondent had any valid defences or counterclaims that could negate or reduce the amount owed. The respondent's arguments focused on disputing the accuracy of the charges and the reasonableness of the amount claimed.

The tribunal carefully examined the evidence presented by both parties. It found that the applicant had not sufficiently substantiated the claim as required by section 399A. The applicant failed to provide adequate evidence to support the amount claimed, and the tribunal determined that the charges were not reasonable. Additionally, the tribunal considered the respondent's arguments and found them to be valid, reducing the amount owed. Consequently, the tribunal dismissed the application and ruled in favour of the respondent.

The tribunal's final orders were that the application under section 399A was dismissed. The tribunal did not award any amount to the applicant and found in favour of the respondent, Iain Lockyear. This decision concluded that the applicant had not met the necessary legal burden to substantiate its claim, and the respondent's defences were valid.

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

DECISION

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