Jeffrey Wright v Fleetmark Group Pty Ltd

[2020] FWC 4874

[2020] FWC 4874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeffrey Wright
v
Fleetmark Group Pty Ltd
(U2020/11511)

COMMISSIONER WILSON MELBOURNE, 16 OCTOBER 2020

Application for an unfair dismissal remedy – applicant deceased prior to determination of application – no reasonable prospects of success – application dismissed.

[1] This decision deals with an application by Mr Jeffrey Wright (the Applicant) for an unfair dismissal remedy against Fleetmark Group Pty Ltd (the Respondent) under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Wright’s application to the Fair Work Commission (the Commission) is date stamped Monday 24 August 2020 and was received via post. The date on which the dismissal took effect is in contention between the parties. According to the Form F2 the date the dismissal took effect was Wednesday, 29 July 2020. The Respondent views Mr Wright was terminated from his employment with Fleetmark on Monday, 13 July 2020 and he was given two weeks’ notice with the dismissal taking effect on either Sunday, 26 July 2020 or Monday, 27 July 2020.

[3] As such, on any construction of the date the dismissal took effect Mr Wright’s application was made out of time.

[4] This matter was allocated to my Chambers on 26 August 2020 for determination of whether an additional period of time should be allowed for the making of Mr Wright’s application. Filing Directions were issued from my Chambers on the same day. Mr Wright failed to file material in compliance with the Directions.

[5] I considered it appropriate to list this matter for a telephone Mention Hearing. The Mention Hearing commenced on 8 September 2020 but was abruptly adjourned due to the ill health of the Applicant.

[6] On 16 September 2020, the Respondent gave the Commission notice of the death of Mr Wright. The Commission does not have details of Mr Wright’s next of kin and he was not represented in the unfair dismissal proceedings.

[7] On 29 September 2020, my Associate wrote to the Executor of Mr Wright’s Estate care of the postal address on file for Mr Wright. A copy of the correspondence was also provided to the Respondent. The correspondence advised that if the Commission did not receive a response within 14 days of the date on the letter, I would prepare a decision in respect of the application.

[8] The main issue in this matter is the ability of another to stand in the shoes of the Applicant after his death.

[9] In Rohrlach v L.M. Robertson & P.F. Robertson (Rohrlach), 1 Commissioner Simpson summarised and applied Deputy President Gostencnik’s observations in Stan v Frontline Australasia (Stan),2 which considered the ability for another to continue an unfair dismissal application after the death of the Applicant:

“(1) Requirement for evidence of legal authority to purport to continue the application;

(2) No rule in the Fair Work Commission Rules contemplating capacity to continue proceedings in the event of death as is the case in the Federal Court rules;

(3) No express power or provision in the Fair Work Act (the Act) to allow a substitution of a party;

(4) The right under the Act to make an unfair dismissal remedy application is personal to the dismissed employee and is non-assignable;

(5) The remedies available do not follow simply by succeeding and are discretionary and the remedy of compensation is intertwined with and not severable from the discretionary considerations relating to an order for reinstatement;

(6) The personal and discretionary nature of the remedies available make it unlikely that the right to bring and maintain the application is something that can be assigned, transmitted, devolved or passed to another person assuming such a power exists;

(7) The passing of the Applicant resulting in an inability to cross examine in circumstances involving disputed facts resulted in a conclusion the application had no reasonable prospect of success and the application was dismissed on that basis.”

[10] Moreover, Commissioner Simpson said:

“As the Deputy President observed in Stan v Frontline Australasia, s.394 of the Fair Work Act 2009 confers upon the aggrieved employee only the right to make an application for a remedy for unfair dismissal, not an entitlement to the remedy itself. He further noted that the nature of the right to apply for the remedy, combined with the ‘personal and discretionary nature of the remedy’ that may be awarded to a successful Applicant, makes it unlikely that the right to bring and pursue the application would constitute ‘something that may be assigned, transmitted, devolved or passed to another person even assuming there is power to make such an order’.”

[11] I adopt the approach taken in Stan, as applied in Rohrlach.

[12] Section 587 of the Act provides:

“Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[13] Mr Wright’s death prevents another from either pursuing or discontinuing the application as the right to apply for an unfair dismissal remedy cannot be assigned to another person. There is no possibility of making findings about or cross-examining the facts that are in dispute in respect of the application.

[14] I find that the application has no reasonable prospects of success, it follows that the application must therefore be dismissed. An Order dismissing the application will be issued with this decision.

COMMISSIONER

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 1   [2018] FWC 2798.

 2   [2014] FWC 5457.