Hayden Hume v Sct Opco Pty Ltd

[2024] FWC 2575

[2024] FWC 2575

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hayden Hume
v

Sct Opco Pty Ltd

(U2024/8202)

DEPUTY PRESIDENT O’KEEFFE PERTH, 19 SEPTEMBER 2024

Unfair dismissal application - application dismissed pursuant to s.587 of the Act.

1. On 15 July 2024 Mr Hayden Hume made an application to the Fair Work Commission (FWC) alleging that he had been unfairly dismissed by his employer, SCT Opco Pty Ltd (SCT). On 29 July 2024 the FWC sent Mr Hume a notice of listing for a conciliation conference to be held by telephone on 21 August 2024. On 20 August 2024 the FWC sent Mr Hume an SMS message reminding him that the conference was to be held the following day.

1. Mr Hume did not attend the conciliation conference on 21 August 2024. The FWC Staff Conciliator phoned Mr Hume twice – once at the start time for the conference and again some minutes later - in an attempt to determine if he intended to participate but received no response. Later that day the Conciliator sent an email to Mr Hume which contained in part as follows:

“If you want this matter to proceed via a further conciliation, then you need to email me your request within two working days, together with advice of any dates or times for which you would be unavailable. I will then refer your request to the Unfair Dismissals Team for consideration. Any such request will be dealt with having regard to all the circumstances.

Hayden Hume must also provide details as to why they were unable to attend/participate.”

1. No response was received from Mr Hume. On 27 August 2024 the FWC wrote to Mr Hume advising him that his matter would be allocated to a member of the FWC. On 2 September 2024 the matter was allocated to my Chambers. On that day, my Chambers sent Mr Hume an email as follows:

“The above matter has now been allocated to Deputy President O’Keeffe. The Deputy President is advised that you did not attend scheduled conciliation on 21 August 2024 and have not been in contact with the Fair Work Commission since that time. Given this, the Deputy President is not inclined to make preparations to hear the matter until he is satisfied that you wish to continue with your application.
Given, this, you are directed to confirm that you intend to proceed with your application and participate in listed hearings and conferences. Such confirmation must be by return email, copied to SCT Opco Pty Ltd, and received by 4.00pm (AWST) Wednesday 4th September.

You are advised that if you do not respond, the Deputy President may dismiss your application pursuant to s.587 of the Fair Work Act.”

1. No response was received from Mr Hume. On 13 September 2024 I directed my Chambers to contact Mr Hume via SMS message and reiterate that he needed to contact Chambers immediately. As at 1.00pm (AWST) on 17 September no response had been received.

1. Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 (Samuel) at [12]) and that it has been found that an Applicant’s failure to prosecute their application can be a grounds for dismissal (Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [16]; Samuel at [13]; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp [2013] FWC 7641 at [8])

1. In this instance, I am persuaded to exercise my powers under s587 to dismiss the application. The Applicant has repeatedly failed to follow directions, has not attended a conference and has failed to respond to emails and SMS messages. I am satisfied that Mr Hume has not prosecuted his application in an appropriate manner and that his application should be dismissed as a result. An order (PR779411) dismissing the application will issue.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR779410>