Hayden Bridges v Jenjoy Investment Group Pty Ltd T/A Fish N Chip Co

[2021] FWC 1834

[2021] FWC 1834

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayden Bridges
v
JENJOY Investment Group Pty Ltd T/A Fish N Chip Co
(U2020/16549)

DEPUTY PRESIDENT LAKE BRISBANE, 6 APRIL 2021

Applicant for an unfair dismissal remedy – application dismissed – s 587.

[1] This decision concerns an application by Mr Hayden Bridges (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant was employed JENJOY Investment Group Pty Ltd T/A Fish N Chip Co (the Respondent) and claimed they were unfairly dismissed.

[2] The Applicant lodged their Form F2 Unfair Dismissal Application on 29 December 2020. A Form F3 Employer Response was filed by the Respondent on 25 January 2021. The matter was allocated to my Chambers for hearing and determination on 9 February 2021.

[3] The Notice of Listing and Directions were sent to the parties on 23 February 2021. The matter was listed for conference on 24 March 2021. The Directions clearly stated that the Applicant was to attend the above conference.

[4] Three attempts were made to contact the Applicant. After successful contact was made, the Applicant advised he was unable to attend. No notification was given prior to the conference and a request for adjournment was not made. The Applicant confirmed that the Notice of Listing indicating the scheduled conference was sent to his email address.

[5] Chambers sent the following email:

Dear parties

I refer to the attached Notice of Listing and the three separate attempts to contact the Applicant this morning for the telephone conference at 9:30 AM (AEST). The Applicant advised that he had not received the Notice of Listing which was sent to XXXXX XXXXX XXXXX X on 23 February 2021. The Applicant confirmed that the email address on the Notice was correct. The Applicant also stated that he was not able to attend the conference this morning as he was in class.

In light of the Applicant’s failure to attend the conference this morning, without notice of his inability to attend or any contact seeking an adjournment, the Deputy President must now turn his mind to whether the application should be dismissed for any failure of the Applicant to prosecute the matter.

Directions to the Applicant

The Applicant is directed to provide a written explanation as to the circumstances around his failure to attend today’s conference, and submissions as to why the matter should not be dismissed in writing to Chambers and copied to the Respondent by Friday, 26 March 2021.

Directions to the Respondent

The Respondent is invited to provide any response to the Applicant’s request for the matter to proceed by hearing, in writing to Chambers and copied to the Applicant by Tuesday, 30 March 2021.

The Deputy President will then determine the matter of whether the application should be dismissed, relisted for conference, or proceed to a hearing as listed.

If the Applicant fails to file these submissions as directed, the application may be dismissed and it will be a matter for the Respondent whether it seeks an order for costs against the Applicant.

(emphasis in original)

[6] No documentation was received in line with Chambers direction and on 31 March 2021 the following email was sent:

Dear parties

Mr Bridges, you were due to provide formal and substantive reasons for your failure to file by no later than 4pm AEST, Friday, 26 March 2021. At this point, no material has been received. Chambers grants you a further extension and instructs that you provide a substantive explanation for the delay, and why your matter should not be dismissed, by no later than 4pm AEST, Wednesday 31 March 2021 (today).

The repeated lack of compliance with direction may be sufficient grounds to find that a matter has no reasonable prospect of success: Richard Carter v The Hanna Group Pty Ltd [2011] FWA 31. You must correspond with Chambers by the above date. This correspondence should provide a clear reason for the delay and lack of communication with Chambers. This is not the first correspondence Chambers has sent regarding your failure to pursue your claim and as such, reasonable steps have been taken to give the opportunity to proceed with your matter.

A failure of the Applicant to comply with a direction of the Commission can result in the claim being dismissed as frivolous or vexatious under s 587(1)(b) or otherwise, under s 399A(1)(b) of the Fair Work Act 2009, on application by the Respondent.

A failure to respond will likely result in your matter being dismissed. It is imperative that you make contact with Chambers before 4pm today.

…If you no longer wish to pursue your claim, please contact Chambers or file a Form F50: Notice of Discontinuance (attached).

(emphasis in original)

[7] No response was received from the Applicant. I am satisfied the Applicant has been given sufficient time and numerous opportunities to make contact. 1

[8] I have concluded that in circumstances, the Applicant failed to comply with my reasonable direction and therefore, has failed to prosecute their claim. I provided numerous opportunities for an explanation, but no correspondence with Chambers was received. As indicated in Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[2011] FWA 4812, a failure to provide material could render an application with no reasonable prospect of success. However, if such an approach was found not to be sufficient, 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.’ 2

[9] 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.

[10] The Application is dismissed. I order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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

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