Iain Lockyear v Graeme Cox

[2020] FWC 6726

[2020] FWC 6726

The attached document replaces the document previously issued with the above code on [2020] FWC 6726.

Deleted paragraph left in error

Associate to Deputy President Lake

Dated 14 December 2020

[2020] FWC 6726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Iain Lockyear
v
Graeme Cox
(U2020/11234)

DEPUTY PRESIDENT LAKE BRISBANE, 14 DECEMBER 2020

Applicant for an unfair dismissal remedy – application dismissed – s 399A.

[1] This decision concerns an application by Mr Iain Lockyear (the Applicant) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Mr Graeme Cox, through Freight and Logistics Queensland Pty Ltd T/A CNQ Freight Services (the Respondent) and claimed that they were unfairly dismissed.

[2] The Applicant lodged their Form F2 Unfair Dismissal Application on 19 August 2020. A Form F3 Employer Response was filed by the Respondent on 2 September 2020. The matter was allocated to my Chambers for hearing and determination on 11 September 2020.

[3] Directions were sent to the parties on 15 September 2020. These directions listed a conference for 17 September 2020 and noted that the Applicant’s submissions were due on 8 October 2020.

[4] The matter proceeded to conference before me, at which there was little contemplation between the parties for a conciliated outcome. The Applicant provided two photos of handwriting which were later confirmed to be his submissions. These were roughly 3 paragraphs in length and detailed one instance of a verbal altercation.

[5] The Respondent requested that the hearing date be adjourned until 14 and 15 January 2021. This request was approved and the initial hearing date of 8 October was maintained as an opportunity for the parties to engage in a further conciliation attempt. The email from Chambers on 2 November 2020 reads as follows and attached the amended Notice of Listing:

Dear parties

The Deputy President is amenable to the request of the Respondent. The Hearing is now listed for 14 and 15 January 2021.

The parties must attend the Commission, in person, at 10am AEST on Thursday 8 December 2020 for an attempted conciliation conference.Find attached the revised Notice of Listing.

(emphasis in original)

[6] Prior to this conference, the matter was briefly allocated to Commissioner Booth to conduct a conciliation. This conciliation was conducted on 1 December 2020. During the course of this conciliation conference the Applicant terminated the call and became uncontactable, despite attempts from Chambers. No explanation or attempt to make contact was made by the Applicant following this abrupt termination.

[7] Despite this, the 8 October 2020 conference was not adjourned and parties were instructed the conference was to proceed and that they must attend. The Applicant on 1 December 2020 sent an email requesting that the hearing date be changed to allow for his work commitments, however the hearing date was already changed. The following email was sent from Chambers on 1 December 2020:

Dear Mr Lockyear

The Hearing dates were changed to 14 and 15 January 2021. Please see attached the Notice of Listing. The parties are also directed to attend a further conference, in person, on 8 December 2020. All parties must attend the Commission office in Brisbane. A failure to attend can result in the matter being dismissed.

[8] On 8 December 2020, the Respondent appeared at the Commission in line with the Directions. The Applicant did not attend and provided no explanation. Chambers telephone the Applicant who confirmed that he did intend to proceed with the matter. Chambers sent the following email to the parties on 8 December 2020:

Dear parties,

Reference is made to the above matter and the in-person conference as listed before Deputy President Lake at Brisbane this morning at 10am. The notice of listing for this in person conference was issued on 2 November 2020, including to the Applicant’s email address at XXXXX XXXXX XXX.

The Respondent and its representative appeared at the Commission for this in-person conference, however at 10:05am the Applicant had not attended and accordingly a call was made to his mobile number. The first attempted call cut off after a couple of rings, however on a second dial the Applicant’s line was answered. During this call the Applicant advised he is unavailable to attend at the Commission today as he is moving, however seeks to progress his application to hearing. This was confirmed via email shortly after the call (correspondence attached here).

The Deputy President confirms receipt of the letter from the Applicant, however in light of the Applicant’s failure to follow a direction to attend at the Commission today, 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 at 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, 11 December 2020.

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, 15 December 2020.

The Deputy President will then determine the matter of whether the application should be dismissed, or proceed to 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)

[9] The Applicant failed to file in line with the above Directions and accordingly the Respondent sent the following email:

Dear Associate

We note that the Applicant was to provide a written explanation as to the circumstances around his failure to attend at the conference scheduled last Tuesday 8 December 2020 and provide submissions as to why the matter should not be dismissed in writing to Chambers and copied to the Respondent, by Friday, 11 December 2020 which the Applicant has failed to do.

The Applicant has failed now on 3 separate occasions to comply with Orders made by the Commission:

1. The Applicant on 1 December 2020 in the member assisted conference before Commissioner Booth failed to participate in the conference as he hung up on Commissioner Booth and would not accept the Commissions call when they tried to contact him back so the conference could proceed. No reason was provided for his failure to participate. The Respondent was in attendance and was ready, willing and able to try and resolve the matter at that point in time.

2. The Applicant despite numerous emails and a specific Order requesting him to attend the Commission in person on Tuesday 8 December 2020 for an in person conference once again failed to attend. The Respondent was in attendance and was ready, willing and able to try and resolve the matter at that point in time.

3. The Applicant failed to provide reasons for his non-attendance nor any submissions as to why his claim should not be dismissed despite Orders requiring him to do so by no later than Friday 11 December 2020.

Furthermore, we submit that the based on the evidence filed by the Applicant in support of his case, the Applicant’s conduct in the proceedings so far and his failure to prosecute his case and the fact that the Applicant has suffered no loss his claim is vexatious and frivolous and has no reasonable prospects of success. The Applicant’s conduct has put the Respondent to significant cost in defending the claim.

It is submitted that the Applicant’s conduct leaves the Deputy President with no option but to dismiss the Applicant’s application either pursuant to s399A(1) and (2) or s587 (b) and (c) of the Fair Work Act 2009 (‘the Act”).

[10] Following 8 December 2020, no correspondence or communication has been received explaining the Applicant’s failure to respond. The Applicant has been given sufficient time and numerous opportunities to make contact.

[11] I have concluded that in circumstances, the Applicant failed to comply with my reasonable direction and therefore, has failed to prosecute their claim. I find it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant’s unfair dismissal application pursuant to s 399A(1).

DEPUTY PRESIDENT

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