John Saunders v McNaught's Transport Pty Ltd
[2022] FWC 1335
•27 MAY 2022
| [2022] FWC 1335 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Saunders
v
McNaught’s Transport Pty Ltd
(U2021/11633)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 27 MAY 2022 |
Application for an unfair dismissal remedy
On 14 December 2021, Mr John Saunders (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). Mr Saunders submitted that he commenced employment with McNaught’s Transport Pty Ltd (Respondent) on 15 September 2018 and was dismissed on 23 November 2021. I note that the Respondent objected to the Application on the basis that the Applicant was not employed by the Respondent employer.
The matter was allocated to my Chambers on 28 March 2022. A notice of listing and directions (Directions) were issued to the parties on 1 April 2022, with the matter listed for Hearing regarding the Application on 12 May 2022. On 10 May 2022, and by consent, the Hearing was relisted to 17 May 2022 with a notice of listing dispatched accordingly.
On 16 May 2022 at 8:31pm (AEST), the Applicant’s former representative sought an adjournment of the Hearing on 17 May 2022 as the Applicant was unwell. The Applicant’s former representative indicated that they should be in a position to provide a medical certificate supporting this position by 17 May 2022. Subsequently, the Hearing was relisted to 26 May 2022 at 11:00am (AEST).
On 17 May 2022, the Applicant’s former representative notified the Commission that they were unable to provide a medical certificate in support of the Applicant’s illness, and as the Applicant lived in regional New South Wales, the Applicant was unable to see a medical practitioner until 26 May 2022 at 1:30pm.
In light of the foregoing, the matter was listed for Mention/Directions in the afternoon of 17 May 2022. At the Mention/Directions, the Applicant’s former representative advised that she would be notifying the Commission of the Applicant’s medical status and incapacity by Friday, 20 May 2022. The parties agreed to keep the Hearing date of 26 May 2022.
On 20 May 2022, the Applicant’s representative at the time filed a Form F54 - Notice of Representative Ceasing to Act. As well as ceasing to act for the Applicant, the Applicant’s former representative advised the Commission that they had no instructions to provide further information as was agreed in the Mention/Directions of 17 May 2022.
On 23 May 2022, an email was sent from my Chambers to the Applicant drawing the Applicant’s attention to the Commission’s powers under s.587 of the Act to dismiss the matter, and s.399A of the Act to dismiss the application (subject to an application by the Respondent employer pursuant to s.399A(2) of the Act). This email also stated that, at present, the Commission understood that the Hearing on 26 May 2022 was to proceed with the Applicant in attendance. The Applicant was put on notice that should he “fail to attend the Hearing on Thursday, 26 May 2022, without communicating to Chambers’ prior to the commencement of the Hearing and without a reasonable explanation, the proceedings may be dismissed without further notice”.
The Applicant failed to appear in the Hearing on Thursday, 26 May 2022. My Associate attempted to dial the Applicant into the proceeding, but the Applicant did not answer the mobile telephone he listed in his Application as his contact telephone number. A voicemail message was left on the Applicant’s mobile number requesting that the Applicant follow the instructions on the notice of listing and dial into the Hearing as soon as possible. Nevertheless, the Applicant failed to appear.
Consequently, on Thursday, 26 May 2022, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to appear in the Hearing on the same, and issuing further a direction for the Applicant to:
“file with the Commission, and serve on the Respondent, written submissions, including appropriate medical evidence, regarding their failure to appear in the Hearing Today, 26 May 2022, at 11:00am (AEST) and the status of the matter. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEST Tomorrow, 27 May 2022.”
The Applicant was notified in the Show Cause Email that if he did not comply with the foregoing direction the “matter will be dismissed without further notice to the Applicant. An Order to this affect will be dispatched after 4:00pm (AEST) Tomorrow, 27 May 2022.”
Legislative Provisions
Section 587 of the Act reads:
“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.
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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:
“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia's power to dismiss matters for other reasons.
[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”[1]
Consideration
As the Applicant has made no attempt to comply with directions, and has failed to attend the Hearing on 26 May 2022, or otherwise explain his non-appearance at same, I have decided to dismiss his Application.
In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s repeated non-compliance with directions is unexplained and wholly unsatisfactory. Further, in taking into account fairness, justice, equity and good conscience, I consider that the Applicant has been provided with repeated opportunities to engage with these proceedings and prosecute his case, and/or contact the Commission to explain his non-compliance and non-attendance, but has instead (including by his silence) expressed a clear disinterest in process and procedure. I therefore find, pursuant to s.587(3)(a), that the Application should be dismissed for want of prosecution. An order dismissing the Application will be published with this decision.
DEPUTY PRESIDENT
[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, at [9].
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