Jonathan Riches v The Red Estate Espresso Bar & Café Pty Limited

[2021] FWC 5961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Jonathan Riches
v

The Red Estate Espresso Bar & Café Pty Limited

(U2020/12139)

COMMISSIONER CAMBRIDGE

SYDNEY, 1 OCTOBER 2021

Application for an unfair dismissal remedy.

The Fair Work Commission (the Commission) issued an Order for Security of Costs in this matter on 18 May 2021, which, inter alia, required that by 25 May 2021, the applicant, Jonathan Riches, was to pay into the trust account of the lawyers representing The Red Estate Espresso Bar & Café Pty Limited (the employer), Frank Law, an amount of $5,000.00, representing payment for security of costs for the prosecution of his Unfair Dismissal Application.

On 27 August 2021, Frank Law sent an email informing the Commission that although details of their trust account has been provided to the Applicant, they had not received the funds Ordered to by paid, and requested the Commission exercise its powers under section 399A of the Act to dismiss the application on the basis of failure to comply with an Order of the Commission.

The applicant has not provided material in compliance with Directions, nor has he provided any explanation for such non-compliance or filed any material in response to the respondent’s application under s.399A.

Therefore, in the circumstances, pursuant to s.399A of the Act, the application is dismissed because the applicant has unreasonably failed to comply with Directions of the Commission.

An Order [PR734137] dismissing the matter will be issued concurrently with this Decision.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Jonathan Riches v The Red Estate Espresso Bar & Café Pty Limited, the Fair Work Commission dismissed an unfair dismissal application filed by Mr Riches against his former employer, The Red Estate Espresso Bar & Café Pty Limited. The dispute arose when Mr Riches claimed he was unfairly dismissed from his employment with the respondent. The Commission had previously ordered Mr Riches to pay $5,000 into the respondent’s legal trust account as security for costs. Mr Riches failed to comply with this order, despite being given multiple opportunities to do so.

The primary legal issue before the Commission was whether Mr Riches' failure to comply with the security of costs order justified the dismissal of his application under section 399A of the Fair Work Act 2009. The respondent argued that Mr Riches' failure to pay the required funds was unreasonable and warranted dismissal of his application. The Commission considered the evidence presented and concluded that Mr Riches' non-compliance with the order was unreasonable and justified dismissal of his unfair dismissal application.

The Commission found that Mr Riches had been given ample time to comply with the security of costs order but had not done so. Furthermore, Mr Riches did not provide any explanation for his non-compliance, nor did he file any material in response to the respondent’s application. The Commission held that under section 399A of the Act, it had the power to dismiss an application if the applicant unreasonably failed to comply with a Direction of the Commission. The Commission exercised this power and dismissed Mr Riches' application for unfair dismissal.

In conclusion, the Fair Work Commission dismissed Mr Riches' unfair dismissal application due to his unreasonable failure to comply with the Commission’s order for security of costs. The dismissal was pursuant to section 399A of the Fair Work Act 2009. An Order dismissing the matter was issued concurrently with this Decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established