Joshua Hayes v The Trustee for Tapco Unit Trust

[2022] FWC 2130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Hayes
v

The Trustee for Tapco Unit Trust

(U2022/5526)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 AUGUST 2022

Application for an unfair dismissal remedy.

Joshua Hayes (the applicant) was employed by The Trustee for Tapco Unit Trust (the respondent) from the 10^th of November 2020 until he was dismissed on the 4^th of May 2022.

On the 19^th of May 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Followmont Transport Pty Ltd as The Trustee for Tapco Unit Trust.
On the 7^th of July 2022, correspondence was sent to the applicant and his representative at the time (Stephen Gaffney of Unfair Dismissals Experts Pty Ltd). My Chambers eventually received a response on the 18^th of July, however the representative filed an F54 – Notice of Representative Ceasing to Act.
The representative mentioned in a separate email that he filed this documentation due to the applicant not being able to be contacted.
On the 22^nd of July, correspondence was sent to the applicant from my Chambers asking him to provide an answer by the 25^th of July whether he wished to continue this claim or not. A response was never received from the applicant regarding this correspondence or the correspondence sent on the 7^th of July.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

Section 587 of the Act provides:

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), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Joshua Hayes, lodged an application for unfair dismissal remedy against the respondent, The Trustee for Tapco Unit Trust, under section 394 of the Fair Work Act 2009. The dispute arose from Hayes' employment with the respondent, which commenced on November 10, 2020, and concluded with his dismissal on May 4, 2022. Hayes' application was made on May 19, 2022, and the respondent was represented by Followmont Transport Pty Ltd as The Trustee for Tapco Unit Trust. Throughout the proceedings, Hayes' representative, Stephen Gaffney of Unfair Dismissals Experts Pty Ltd, ceased representation due to a lack of contact with Hayes. The applicant did not respond to subsequent correspondence from the Fair Work Commission, leading to the dismissal of the application.

The central legal issues in this case involved whether the Fair Work Commission had the jurisdiction to dismiss Hayes' application for unfair dismissal and whether the application met the criteria for dismissal under section 587 of the Fair Work Act. Specifically, the court had to consider whether the application was not made in accordance with the Act, whether it was frivolous or vexatious, or whether it had no reasonable prospects of success. Given the lack of response from Hayes to multiple communications, the court found the application to be in want of prosecution.

The court's reasoning was grounded in the provisions of section 587 of the Fair Work Act, which allows for the dismissal of an application under various circumstances, including want of prosecution. The court noted that the phrase "Without limiting when FWC may dismiss an application" in section 587(1) of the Act establishes that the Commission's jurisdiction to dismiss an application is not restricted to the circumstances explicitly listed. The repeated failure of Hayes to respond to correspondence from the Commission and his representative's withdrawal due to lack of contact, provided sufficient grounds for the dismissal of the application. The court concluded that the application should be dismissed for want of prosecution under section 587(3)(a) of the Act.

An order dismissing the application for unfair dismissal remedy will be issued in accordance with this decision. This ruling underscores the importance of maintaining communication and engagement in legal proceedings to avoid the dismissal of applications for want of prosecution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established