Gareth Michael O'Shea v Nor-West Freight Services Pty Ltd

[2023] FWC 2788

[2023] FWC 2788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gareth Michael O’Shea
v

Nor-West Freight Services Pty Ltd

(U2023/2559)

COMMISSIONER SCHNEIDER PERTH, 24 OCTOBER 2023

Application for an unfair dismissal remedy

1. This matter involves an application made by Mr Gareth O’Shea (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Nor-West Freight Services Pty Ltd (the Respondent).

Background – Non-Compliance

1. Correspondence was sent to the parties, on 2 October 2023, with specific directions to each party. This was sent to the Applicant by email.

1. The Respondent raised two jurisdictional objections in response to the application. The first regarding the status of the business being a small business employer and second, that the Applicant did not meet the minimum employment period.

1. The parties were notified that these objections were to be determined on the papers and that they will be notified, following the receipt of their submissions, whether a Hearing will be required to determine the matter.

1. The Applicant was directed to provide written materials in response to the objections raised, being that the Respondent is a small business employer (within the meaning of the Act) and that the Applicant had not met the Minimum Employment Period (12 months for small business employers) by 20 October 2023.

1. Nothing was received from the Applicant by the above date.

1. A follow up letter was sent to the Applicant, on 20 October 2023, regarding the failure to comply with the Commission’s direction and directing that the materials be filed and served by 23 October 2023. 

1. The letter advised a further failure to comply with the Commission's direction would be grounds for the application to be dismissed.

1. No materials were received by the deadline on 23 October 2023.

1. Subsequently, I instructed my associate to send the Applicant one final notice to comply on 24 October 2023.

1. The Applicant was again directed to comply with the original directions by 4:00PM on 24 October 2023. This correspondence outlined, in detail, the attempts made to contact the Applicant and highlighted that the file was at risk of closure.

1. A second follow up email was sent to the Applicant, approximately an hour before the final deadline to comply, reminding them of the impending deadline.

1. As of the date and time of this Decision, no further communication from the Applicant has been received.

Legislation

1. Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

1. Further, section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Commission must take into account the objects of the relevant Part of the Act.

1. A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

1. The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible, and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

1. Section 587(3) of the Act empowers the Commission to dismiss an application on its own initiative.

1. Section 587(3) of the Act reads 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.

(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.”

Consideration

1. In this case, the Applicant has failed to comply with the Commission’s directions on several occasions and was on notice that non-compliance would be grounds for the application to be dismissed.

1. The Applicant has been provided four opportunities to comply and has been repeatedly reminded of the requirement to comply and risks to his application if he did not.

1. The Applicant has not attempted to contact my Chambers or comply with the directions.

1. The Commission has afforded the Applicant several opportunities to advance his application, despite his repeated non-compliance.

1. The Applicant has repeatedly failed to comply with the directions of the Commission.

1. The Applicant never sought or requested an extension from the Commission nor provided reasonable explanation for the continued non-compliance.

1. I also note that, on assessment of the Respondent’s materials, it appears that the objections in this matter would likely have been upheld. However, the Commission is unable to make any definitive conclusions due to the Applicant’s repeated non-compliance.

Conclusion

1. Consequently, my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of the Commission under section 587(3) of the Act. An Order to this effect will be issued in conjunction with this decision. [1]

COMMISSIONER

[1] [PR767575].

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<PR767574>