Lachlan Martin Frances Georgee v The Trustee for TGI Friday's Asia Pacific Unit Trust

[2023] FWC 1821

[2023] FWC 1821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Lachlan Martin Frances Georgee
v

The Trustee for TGI Friday’s Asia Pacific Unit Trust

(C2023/3286)

COMMISSIONER HUNT BRISBANE, 25 JULY 2023

Application to deal with contraventions involving dismissal - applicant shown no willingness to prosecute case – non-compliance with Commission directions – application dismissed.

1. On 7 June 2023, Mr Lachlan Georgee made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed by The Trustee for TGI Friday’s Asia Pacific Unit Trust (the Respondent) in contravention of the general protection provisions of the Act.

1. Mr Georgee nominated 21 May 2023 as the effective date of dismissal.  The Respondent declared that Mr Georgee had been summarily dismissed in person on 16 May 2023. 

2. The matter was allocated to me to determine if Mr Georgee’s application had been made one day out of time, and if it had, whether to grant to Mr Georgee an extension of time to bring his application. 

1. On 11 July 2023, I issued directions requiring Mr Georgee to provide witness statements and submissions by no later than 18 July 2023 in support of his application.  On 21 July 2023, my Associate wrote to the parties, requesting Mr Georgee to communicate as to why he had not complied with the directions and advising that the matter would be listed for a non-compliance telephone hearing at 4:00pm (AEST) on Monday, 24 July 2023.

2. A notice of listing was issued.

1. Having received no response from Mr Georgee on 21 July 2023, my Associate attempted to telephone Mr Georgee on the morning of 24 July 2023 to confirm his attendance at the non-compliance hearing.  My Associate left a voicemail, informing Mr Georgee of the non-compliance hearing. The following text message was sent to Mr Georgee:

   “The Commission has sent a Notice of Listing of the non-compliance hearing to your email address.

The non-compliance hearing is listed at 4:00pm (AEST) today. Should you fail to attend, the Commissioner may dismiss your application.

If you have any questions regarding your matter, please call [number] and quote matter number C2023/3286.”

1. Between 4:05pm and 4:22pm on 24 July 2023, my Associate attempted to call Mr Georgee on five occasions, however the call went straight to voicemail. 

1. Later that day, the parties were informed that I had decided to vacate the non-compliance hearing, and my decision in this matter was now reserved.

1. Section 587 of the Act provides as follows:

“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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.” 

Consideration

1. 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).

1. I have satisfied myself that it is not possible to determine Mr Georgee’s application in the absence of sworn evidence from him, nor is it fair to deny the Respondent the opportunity to cross-examine him. 

1. Mr Georgee has showed no willingness to progress his application in accordance with the Commission’s directions or otherwise. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.   

COMMISSIONER

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