Jack Langton v Programmed Industrial Maintenance Pty Ltd - [2023] FWC 1547

[2023] FWC 1547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jack Langton
v

Programmed Industrial Maintenance Pty Ltd

(C2023/1067)

COMMISSIONER MIRABELLA

MELBOURNE, 27 JUNE 2023

Application to deal with contraventions involving dismissal – application dismissed pursuant to s.587 of the Fair Work Act 2009.

On 28 February 2023, Mr Jack Langton filed a general protections application involving dismissal under s.365 of the Fair Work Act 2009 (Act) in the Fair Work Commission (Commission).

Mr Langton commenced employment with Programmed Industrial Maintenance Pty Ltd (Programmed) in early February 2023, the exact date being in dispute. Mr Langton says that he was dismissed on 10 February 2023.

Programmed raised a jurisdictional objection to the application. They say Mr Langton is a casual employee who is still employed by them and therefore he was not dismissed.

Before this matter was allocated to me on 31 May 2023 for case management regarding the jurisdictional objection, Mr Langton had failed to attend two conciliation conferences which were to be conducted by staff members of the Commission. No explanation was provided by Mr Langton for his failure to attend these conferences.

I listed the matter for conference on 2 June 2023. On 31 May 2023, Mr Langton sought an adjournment, advising that he will not be available for the conference as he will be working in a coal mine until 7 July 2023.

On 1 June 2023, my associate sent an email requesting Mr Langton’s work hours so that I could accommodate his unavailability. Mr Langton replied that afternoon, stating he will only be available from 29 June 2023 to 3 July 2023.

I vacated the 2 June 2023 conference and parties were issued with directions for the filing and service of material in relation to the jurisdictional objection. The directions contained the following note, and this advice was reiterated in the covering email:

“Non-compliance: The Commissioner will not accept material that is filed late unless an extension has been granted by the Commissioner before it was due. Requests for an extension of time must be made in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted. Non-compliance with the Directions has the potential to impact on any continuation of the proceeding.”

The directions required Mr Langton to file and serve an outline of submissions, signed witness statements and any other documentary material by 4:00pm on 22 June 2023.

On 20 June 2023, my associate sent an email to Mr Langton reminding him of the above deadline and noting that non-compliance with the directions had the potential to impact on continuation of the proceeding. That afternoon, Mr Langton replied to this email, stating that he is currently working in Queensland, that he has an injury and that he will not be home until 28 June 2023. He sought an extension of time until 29 June 2023 to submit his material.

That same afternoon, my associate replied to Mr Langton stating that I did not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jack Langton v Programmed Industrial Maintenance Pty Ltd

Details

AGLC: Jack Langton v Programmed Industrial Maintenance Pty Ltd [2023] FWC 1547
Case: [2023] FWC 1547
Decision Date: 27 JUNE 2023

CaseChat Overview and Summary

Jack Langton filed a general protections application involving dismissal against Programmed Industrial Maintenance Pty Ltd in the Fair Work Commission under section 365 of the Fair Work Act 2009. Programmed objected to the jurisdiction of the Commission, claiming Mr Langton was a casual employee still employed by them and had not been dismissed. The matter was allocated to Commissioner Mirabella for case management regarding the jurisdictional objection. Mr Langton failed to attend two conciliation conferences and did not provide any explanation for his non-attendance. He then sought an adjournment for the conference, claiming he would be working in a coal mine until July 2023. Despite receiving directions regarding the filing and service of material in relation to the jurisdictional objection, Mr Langton did not comply with these directions and failed to provide an explanation for his non-compliance.

The legal issues in this case were whether the application should be dismissed for want of prosecution, and whether the Commission had the power to dismiss an application under section 365 of the Act for reasons other than those specified in section 587(1). The Commission considered previous decisions which held that section 587(3)(a) allows an application under section 365 to be dismissed for want of prosecution. The Full Bench of the Commission in Bosworth v Coles Supermarket Beechboro stated that the specific grounds outlined in section 587(1) are not exhaustive and do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative. In exercising this discretion, the Commission must consider the principles of fairness, justice, equity, and good conscience.

The Commission was satisfied that Mr Langton's application should be dismissed for want of prosecution, given his lack of engagement with the Commission's processes and the resources expended by Programmed in filing submissions. The application was dismissed pursuant to section 587(3)(a) of the Act, and an order giving effect to this decision will be issued shortly.

Orders