Liam Brander v Serco Australia Pty Limited
[2023] FWC 3455
•22 DECEMBER 2023
| [2023] FWC 3455 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Liam Brander
v
Serco Australia Pty Limited
(U2023/10161)
| COMMISSIONER RIORDAN | SYDNEY, 22 DECEMBER 2023 |
Application for an unfair dismissal remedy
On 18 October 2023, Mr Liam Brander (the Applicant) lodged an application pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act), being an application for an unfair dismissal remedy against Serco Australia Pty Limited (the Respondent).
The matter was allocated to my Chambers on 29 November 2023 for the purposes of conducting a Member Assisted Conciliation.
On that same date, my Chambers issued a notice of listing for a Member Assisted Conciliation to be conducted on 13 December 2023. The notice of listing requested that both parties confirm their appearances in writing to my Chambers ahead of the listing date. Neither party provided their appearances as requested.
On 13 December 2023, my Chambers sent urgent correspondence to the parties seeking their appearances for the afternoon conference.
The Respondent provided their appearances and dialled into the conference line as required by the notice of listing; the Applicant, however, did not provide any response or dial into the conference. My Chambers attempted to contact the Applicant at 1:27pm QLD time, 1:30pm QLD time, 1:35pm QLD time and 1:45pm QLD time for the purposes of connecting him to the conference scheduled to commence at 1:30pm QLD time. All attempts were unsuccessful and the Applicant failed to dial into the conference line.
The conference was adjourned due to the Applicant’s failure to attend, and a ‘non-attendance’ letter was issued granting the Applicant 7 days to provide an explanation for his failure to attend.
At 7:27pm QLD time on 13 December 2023, the Applicant responded to my Chambers stating:
“Good evening,
I would like to inform that I was not informed of any conference today. The email sent 15 minutes before the conference is not adequate notice. I’ve been working all day today and do not have access to my phone.
Regards,
Liam Brander”
On this basis, my Chambers wrote to the parties seeking their availability for a relisted Member Assisted Conciliation on the morning of 21 December 2023.
The Applicant responded to that correspondence late on the evening of 14 December 2023 stating:
“My apologies but I will be working 6am-2pm that day, with my work and the complexity of my client I will not able to take time out from work to attend this date.
Regards,
Liam Brander”
My Chambers, therefore, sent correspondence to the parties at 8:31am QLD time on 15 December 2023 advising that, in light of the Applicant’s availability, the matter would be relisted for a Member Assisted Conciliation at 2:30pm QLD time on 21 December 2023.
A notice of listing to this effect was issued on that same date, again requesting that the parties confirm their appearances in writing to my Chambers ahead of the listing date.
A follow-up email was also sent to the parties that same date, noting that the listing had been issued and requesting that the parties confirm receipt.
The Respondent parties confirmed receipt of the listing and their appearances as requested.
The Applicant did not provide any response.
The Respondent parties connected into the conference line on 21 December 2023 as required, however, the Applicant did not. Two attempts to contact him on his mobile were unsuccessful. A voice message was left seeking an urgent return call, and an email was sent confirming the same.
No response has been received from the Applicant.
At the conference of 21 December 2023, in light of the Applicant’s failure to attend, the Respondent made an oral application pursuant to s.399A of the Act, seeking that the Applicant’s application be dismissed.
I note that the Applicant has made no attempt to contact my Chambers, via email or by telephone, overnight.
Relevant Legislation
Section 399A of the Act provides as follows:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.....
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
Further, 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.
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 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.”
It has been held that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. In failing to respond to correspondence from my Chambers and failing to attend a Member Assisted Conciliation on two occasions, the Applicant has shown no willingness to prosecute his case and taken no steps to do so.
In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.
After considering all circumstances in this matter, including the Respondent’s application under s.399A for dismissal of the application, I am satisfied that it is appropriate to dismiss Mr Brander’s application for failure to prosecute his case.
Accordingly, the application is dismissed pursuant to section 587 of the Act.
I so Order.
COMMISSIONER
[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].
[3] [2011] FWAFB 7498 at [19].
Printed by authority of the Commonwealth Government Printer
<PR769756>
0
0
0