Herbert v Scope Infrastructure

[2016] FWC 1556

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Rocky Herbert
v
Scope Infrastructure
(U2015/5940)
COMMISSIONER WILLIAMS	PERTH, 11 MARCH 2016
Termination of employment.

[1] This decision deals with an unfair dismissal remedy application made by Mr Rocky

Herbert (Mr Herbert or the applicant). The respondent is Scope Infrastructure (Scope or the

respondent).

[2] This matter was listed for hearing in Port Hedland on 20 January 2016.
[3] Mr Herbert attended the hearing however there was no attendance by any person on

behalf of the respondent.

[4] Following enquiries of the respondent, the next day, Mr Ashley Griffiths (Mr

Griffiths) a Director of Scope advised the Commission in writing that the business ceased

trading in late September 2015 and had significant outstanding debts owing to a range of

creditors.

[5] On 21 January 2016 the Commission provided a copy of Mr Griffiths’ explanation to

Mr Herbert and asked that he advise whether he wished to continue with his application.

[6] No response was received from Mr Herbert. Consequently on 26 February 2016 the

Commission again wrote to Mr Herbert and requested he respond to the Commission’s

correspondence of 21 January 2016. Mr Herbert was also advised that if the Commission had

not heard from him by 4 March 2016 his application would be dismissed for want of

prosecution.

[7] As at the date of this decision Mr Herbert has not responded to the Commission’s

request that he advise whether he wishes to continue with his application nor has he otherwise

contacted the Commission.

[8] In the circumstances I am satisfied that this application should be now dismissed for

want of prosecution under section 587 of the Fair Work Act 2009.
[2016] FWC 1556

[9] An order to that effect will be issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Herbert v Scope Infrastructure involved Rocky Herbert, who brought an unfair dismissal remedy application against Scope Infrastructure before the Fair Work Commission. Scope Infrastructure, represented by its Director Mr Ashley Griffiths, had ceased trading due to significant debts. The matter was heard in Port Hedland, with Mr Herbert attending but no representative from Scope Infrastructure. Following the hearing, Mr Griffiths informed the Commission that the business had ceased trading in late September 2015 and had outstanding debts to various creditors. The Commission subsequently contacted Mr Herbert to determine if he wished to continue with his application, given the circumstances. Despite follow-up correspondence, Mr Herbert did not respond, leading the Commission to consider dismissing the application for want of prosecution. The legal issue at hand was whether Mr Herbert's failure to respond warranted dismissal of his application under section 587 of the Fair Work Act 2009.

The Fair Work Commission was required to determine whether Mr Herbert's failure to respond to the Commission's correspondence constituted a sufficient basis for dismissing his unfair dismissal application. The Commission assessed the respondent's submissions, Mr Herbert's lack of communication, and the business status of Scope Infrastructure. The key considerations involved interpreting the procedural requirements and potential consequences of Mr Herbert's inaction. The Commission also needed to balance the rights of both parties and ensure that the application was handled in accordance with the Fair Work Act 2009. Ultimately, the decision hinged on whether Mr Herbert's unresponsiveness warranted dismissal of the application.

Commissioner Williams concluded that the application should be dismissed for want of prosecution under section 587 of the Fair Work Act 2009. Mr Herbert's non-response to the Commission's requests for further action was deemed sufficient to warrant dismissal. The Commission highlighted that Mr Herbert had not contacted the Commission since the hearing, and despite multiple opportunities to respond, he had not indicated whether he wished to proceed with his application. The Commissioner noted that the respondent had ceased trading and was unable to meet its financial obligations, which further justified the dismissal of the application. The Commission's decision was based on the procedural grounds that Mr Herbert had not demonstrated a continued intent to pursue his application, leading to its dismissal.

An order was issued to dismiss the application for unfair dismissal brought by Mr Herbert against Scope Infrastructure for want of prosecution. This decision underscores the importance of timely communication and responsiveness in legal proceedings, particularly in cases involving the Fair Work Commission. The dismissal was a result of Mr Herbert's failure to engage with the Commission's follow-up correspondence and his lack of communication regarding his intentions to proceed with the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established