Justin Michael Cannard v Hawkins Transport Pty Ltd

[2025] FWC 164

[2025] FWC 164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Justin Michael Cannard
v

Hawkins Transport Pty Ltd

(U2024/13810)

DEPUTY PRESIDENT DOBSON BRISBANE, 17 JANUARY 2025

Application for an unfair dismissal remedy - application dismissed

1. This decision relates to an unfair dismissal application by Mr Justin Michael Cannard (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against his former employer, Hawkins Transport Pty Ltd (the Respondent) filed on 17 November 2024.

1. On 19 December 2024, I issued directions for the filing of material. The directions included both the date and time for the conference and a requirement that Mr Cannard file material by no later than 4:00pm (AEST) on 13 January 2025. Mr Cannard failed to do so.

1. The matter was listed for a conference, by telephone, at 10:00am on 16 January 2025. On 13 January 2025, the matter was relisted to commence at 9:30am AEST on the same date. The parties were reminded of the conference by a Notice of Listing issued from my Chambers on 13 January 2025 which, inter alia, required parties to confirm their telephone contact details and attendees at least 24 hours before the listed conference. Mr Cannard again failed to comply with the requirement to notify Chambers of his contact details before the conference.

1. On 15 January 2025, my chambers again wrote to Mr Cannard reminding him again of his failure to provide his contact details, requesting them again and reminding him that he had not complied with directions to file his materials nor sought an extension to do so. I provided Mr Cannard with a further extension to file his materials by no later than 4pm on 16 January 2025 and reminding him of my directions to appear at the conference at 10am on 16 January 2025. Mr Cannard was again warned that his failure to follow directions could result in the dismissal of his application without further reference to him. Again, Mr Cannard failed to file his material as directed.

1. At the conference listed for 16 January 2025, my chambers made four attempts to contact Mr Cannard on the contact number provided on his Form F2. A voicemail message was left informing him that he was directed to attend the conference, and an SMS text message was also sent to the contact number listed on his form F2. Mr Cannard failed to attend the conference, and we were unable to proceed.

1. My chambers again wrote to Mr Cannard noting his failure to attend the conference as requested and the multiple attempts that had been made to contact him. Mr Cannard was directed to make contact with my chambers by no later than 4pm that day to provide reasons for his repeated failure to comply with directions, respond to correspondence and to attend the conference. Mr Cannard was given an opportunity to withdraw his claim or advise of he intended to proceed with his claim. Mr Cannard was advised that a failure to respond could result in his application being dismissed with no further warnings. Again, Mr Cannard failed to respond, and he also failed to file his material by the new extended deadline.

Consideration

1. The Act provides the circumstances that an application may be dismissed.[1]

1. I note that Act does not limit the reasons when the FWC may dismiss an application.[2] In considering further whether Mr Cannard’s application should be dismissed on the initiative of the FWC,[3] I am satisfied that Mr Cannard has unreasonably and repeatedly failed to comply with directions to file his materials, attend conference or to respond to any communication from my Chambers.

Conclusion

1. For these reasons, I consider that it is appropriate to dismiss Mr Cannard’s application under s.587(3)(a) for want of prosecution. Pursuant to s.587(3)(a), Mr Cannard’s unfair dismissal application is dismissed. I so order.

DEPUTY PRESIDENT

[1] 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 general protections 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.

[2] Fair Work Act 2009 (Cth) s.587(1).

[3] Ibid s.587(3)(a).

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