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;

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.

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Details

Case: [2020] FWC 4874
Decision Date: 16 OCTOBER 2020

CaseChat Overview and Summary

Jeffrey Wright brought an application for an unfair dismissal remedy against his former employer, Fleetmark Group Pty Ltd, in the Fair Work Commission. The dispute arose from Mr Wright's termination of employment and he sought relief under the Fair Work Act 2009. Unfortunately, Mr Wright passed away before the application was determined. The central legal issue before the Commission was whether the application could proceed in light of Mr Wright's death and, if so, whether there were reasonable prospects of success for the application.

The Commission considered the statutory framework and relevant case law in determining that upon the death of an applicant, their personal claims, including those for unfair dismissal, are extinguished. However, the Commission noted that the application itself may continue if it can be shown that the estate of the deceased applicant has a reasonable prospect of success. The Commission examined the merits of Mr Wright’s claims and found that there were no reasonable prospects of success. The evidence and arguments presented did not establish that the termination was unjust or unfair under the relevant legislative provisions.

Given the lack of reasonable prospects of success, the Commission dismissed the application. The reasoning was grounded in the statutory provisions and the procedural fairness required in such circumstances. The Commission concluded that it would not be appropriate to continue the application on behalf of Mr Wright's estate.

The final order of the Commission was that the application for an unfair dismissal remedy was dismissed. The estate of the deceased applicant was not entitled to proceed with the claims for unfair dismissal.

Orders