Jeremy Oxenbridge v NSM Holdings Qld Pty Ltd
[2024] FWC 684
•15 MARCH 2024
| [2024] FWC 684 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jeremy Oxenbridge
v
NSM Holdings Qld Pty Ltd
(U2023/12802)
| COMMISSIONER SCHNEIDER | PERTH, 15 MARCH 2024 |
Application for an unfair dismissal remedy
This matter involves an application made by Mr Jeremy Oxenbridge (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is NSM Holdings Qld Pty Ltd (the Respondent).
This decision deals with the repeated non-compliance of the Applicant and failure to prosecute this matter or otherwise engage with the Fair Work Commission (the Commission).
Background – Non-Compliance
Failure to attend (Staff Conciliation)
Correspondence was sent to the parties, on 25 January 2024, outlining that the matter was listed for Staff Conciliation on 19 February 2024. This was sent to the Applicant by email.
The matter was listed at 10:15AM on 19 February 2024, by video, using Microsoft Teams. The parties were provided with a letter which included detailed information regarding the listing, notably the correspondence confirmed the following:
“We will email you 3 days before the conciliation. We will also send a reminder email 1 hour before the conciliation. Both of these emails will contain the link to join the conciliation. You will need to click on this link to join the conciliation on the day.”
The Commission’s records indicate that the Applicant did not attend the Staff Conciliation on the link provided and could not be reached by mobile phone.
Failure to reply
On 22 February 2024, the Commission emailed the Applicant a letter regarding his failure to attend the Staff Conciliation and requested a response from him by 29 February 2024. This letter noted the risk of the matter being dismissed.
The Commission’s records indicate that no response was received from the Applicant as requested.
On 5 March 2024, a further email was sent to the Applicant, requesting he respond to the letter by 8 March 2024 and, again, noting the risk that the matter may be dismissed.
The Applicant responded to the second email send on 5 March 2024, later that day, confirming his intention to proceed with the matter.
The matter was then allocated to my Chambers.
Failure to attend (Member Conciliation)
A Notice of Listing was sent to the parties, on 7 March 2024, outlining that the matter was listed for Member Conciliation on 14 March 2024. This was sent to the Applicant by email.
The matter was listed at 9:00AM on 14 March 2024, by video, using Microsoft Teams.
The parties were provided with a link to join the conference on the Notice of Listing and instructed to join 10 minutes prior to the listing time.
The Applicant did not join the listing as directed in the Notice of Listing.
My associate sent an email to the Applicant requesting he urgently join the conference and included the link to join at 8:57AM.
Subsequently, my associate called the Applicant’s mobile number, noting that the number provided appeared to be incorrect. The call was unsuccessful. My associate adjusted the (seemingly incorrect) prefix of the provided number and again tried, twice, to call the Applicant with no success.
A further email was sent, at 9:03AM, requesting urgent attendance and noting that 5 more minutes would be afforded before the listing was adjourned.
The Applicant did not attend the listing and did not contact my Chambers in response to the repeated attempts to reach out.
I instructed my associate to adjourn the listing at approximately 9:10AM due to the Applicant’s failure to attend.
Failure to comply with a Direction
Subsequently, a letter regarding the non-compliance was sent to the Applicant. This letter warned that the matter would be dismissed in the event of further non-compliance. The letter included a direction for the Applicant to file a response regarding their failure to attend and the potential dismissal of the matter by 10:00AM, 15 March 2024.
No response was received by the Applicant in compliance with the letter and direction issued.
As of the date and time of this Decision, no further communication from the Applicant has been received.
Legislation
Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.
Further, section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Commission must take into account the objects of the relevant Part of the Act.
A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.
The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible, and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.
Section 587(3) of the Act empowers the Commission to dismiss an application on its own initiative.
Section 587(3) of the Act reads as follows:
“587 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.
(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.”
Consideration
In this case, the Applicant has failed to comply with the Commission’s requests on several occasions and was on notice that non-compliance would be grounds for the application to be dismissed.
The Applicant has been provided several opportunities to comply and has been repeatedly reminded of the requirement to comply and the risks to the application if they did not.
The Applicant has repeatedly failed to engage with the Commission.
The Applicant never sought or requested an extension from the Commission.
The Applicant has not attempted to contact my Chambers to provide explanation for their failure to attend or comply with the Direction.
The Commission has afforded the Applicant several opportunities to advance their application, despite the repeated non-compliance.
In the circumstances of this matter, and in accordance with the Act, I have deemed it appropriate that the application now be dismissed.
Conclusion
Consequently, my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of the Commission under section 587(3) of the Act. An Order to this effect will be issued in conjunction with this decision. [1]
COMMISSIONER
[1] [PR772420].
Printed by authority of the Commonwealth Government Printer
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