Justin Newman v Bunnings Group Limited

[2020] FWC 1776

[2020] FWC 1776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Newman
v
Bunnings Group Limited
(U2018/7856)

COMMISSIONER BISSETT MELBOURNE, 3 APRIL 2020

Application for an unfair dismissal remedy.

[1] On 30 July 2018 Mr Justin Newman (Applicant) made an application to the Fair Work Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by Bunnings Group Limited.

[2] The matter was listed for Arbitration Conference/Hearing on 25 – 26 October 2018 and Directions were set for the filing of material.

[3] On 11 September 2018 the Applicant’s representative emailed correspondence to the Commission advising that the Applicant had passed away.

[4] On 12 September 2018 the Commission dispatched an amended Notice of Listing to the parties advising that the Arbitration Conference/Hearing and Directions for filing material were vacated pending further advice from the Commission.

[5] On 14 September 2018 the Commission telephoned the Applicant’s representative to advise that the Conference/Hearing and Directions were vacated pending further advice from him about the matter. The Applicant’s representative advised that he was unsure whether he had the authority to file a Form F50 Notice of Discontinuance on the Applicant’s behalf. The Commission advised they could not provide legal advice about the matter. The Applicant’s representative requested the Commission make enquiries about the situation for his reference and that he would also make his own enquiries.

[6] On 27 March 2019 the Commission emailed correspondence to the Applicant’s representative on behalf of the Panel Head for Termination of Employment advising that only the Executor(s) of the Applicant’s Estate can discontinue the application. The Commission requested that the Applicant’s representative relay this information to the Applicant’s family and that they would need to make contact with the Commission when the position is known.

[7] On 15 October 2019 the Commission emailed correspondence to the Applicant’s representative requesting an update as to the status of the matter. To date, no response has been received.

[8] In Stan v Frontline Australasia 1, Deputy President Gostencnik considered whether another person could proceed with an application for relief from unfair dismissal pursuant to s.394 of the FW Act in circumstances where the applicant is deceased. In relation to s.394 of the FW Act, the Deputy President said:

s.394 of the Fair Work Act 2009 confers upon the aggrieved employee only the right to make an application for a remedy for unfair dismissal, not an entitlement to the remedy itself. He further noted that the nature of the right to apply for the remedy, combined with the ‘personal and discretionary nature of the remedy’ that may be awarded to a successful Applicant, makes it unlikely that the right to bring and pursue the application would constitute ‘something that may be assigned, transmitted, devolved or passed to another person even assuming there is power to make such an order’

[9] In Rohrlach v L.M. Robertson & P.F. Robertson (Rohrlach) 2, Commissioner Simpson summarised a number of observations of Deputy President Gostencnik relevant to the question of whether an application could survive where the applicant is deceased. The matters raised by Deputy President can be put as follows:

(1) There is a requirement for evidence of legal authority to purport to continue the application;

(2) There is no rule in the Fair Work Commission Rules contemplating capacity to continue proceedings in the event of death as is the case in the Federal Court rules;

(3) There is no express power or provision in the Fair Work Act (FW Act) to allow a substitution of a party;

(4) The right under the FW Act to make an unfair dismissal remedy application is personal to the dismissed employee and is non-assignable;

(5) The remedies available under the FW Act of compensation is intertwined with and not severable from the discretionary considerations relating to an order for reinstatement;

(6) The personal and discretionary nature of the remedies that might have been available had the application been successful make it unlikely that the right to bring and maintain the application is something that can be assigned, transmitted, devolved or passed to another person assuming such a power exists (although the Deputy President found he did not need to determine this matter to finality);

(7) The Applicant could not be cross-examined with respect to disputed facts supporting a conclusion that the application had no reasonable prospect of success and the application was dismissed on that basis.

[10] In both Stan v Frontline Australasia and Rohrlach it was held that the application no longer had any reasonable prospect of success and should be dismissed under s587(1)(c).

[11] Section 587 of the FW Act states:

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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[12] I consider that, as the Applicant’s death prevents the application from being either pursued or discontinued by another person, the application has no reasonable prospects of success. Accordingly, the application is dismissed under s.587(1)(c) of the FW Act. An Order 3 giving effect to this decision will be issued shortly.

COMMISSIONER

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<PR718027>

 1   [2014] FWC 5457.

 2   [2018] FWC 2798.

 3   PR718028.