Liam McGrath v Altru Enterprise Pty Ltd
[2022] FWC 2158
•15 AUGUST 2022
| [2022] FWC 2158 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Liam McGrath
v
Altru Enterprise Pty Ltd
(U2022/6650)
| DEPUTY PRESIDENT BELL | MELBOURNE, 15 AUGUST 2022 |
Application for an unfair dismissal remedy - application dismissed pursuant to s.587.
On 1 June 2022, Mr Liam McGrath (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed by Altru Enterprise Pty Ltd (Respondent) on 13 June 2022. The Respondent agrees the Applicant was dismissed but denies the dismissal was unfair.
A high-level summary of the nature of the dispute is disclosed from the Respondent’s letter of termination, which identified the following reasons for dismissal, which states:
“Conflict of interest
Due to a notable decline in the performance of your employment duties over the previous six months, you have received verbal warnings regarding our concerns surrounding this decline.
It has recently come to light that during your employment with us, you have created and continue to operate a competing business (wemart.com.au), which is a direct conflict of interest and breaches common law duties of loyalty and fidelity, and has resulted in a failure to act honestly and in the best interests of our business.”
The Applicant filed a ‘Form F2’ application to commence his claim. In that application, he contends he was no given any opportunity to defend himself. As to the website in question, he states (among other matters) “the website was simply a side hobby project, and that I am willing to take down the website as it was literally just something I had been working on to teach myself”. The relief sought by the Applicant was compensation for lost income and payment of his 4 week notice period.
On the conflict-of-interest issue, the Respondent contends it is more serious than a “hobby”. Among other matters, the Respondent states “Liam has been contacting the company's suppliers to either obtain goods to sell via his website or drop ship service directly to his customers.”
The Applicant’s Form F2 provided contact details for himself, namely an email address and a mobile telephone number. He also provided email and mobile telephone contact details for his representative, Mr Jon Minney. Mr Minney was not described as a paid lawyer or agent but was a person whom I infer was willing to assist the Applicant, by support or otherwise.
On 26 July 2022, the matter was allocated to me.
On 27 July 2022, I issued directions for the conduct of the matter. Among other matters, the directions required:
· At 9.30am, Friday, 5 August 2022, the parties attend by Microsoft Teams a mention hearing (with that time reserved for a possible conference if I considered that would be beneficial);
· By 4:00pm, Friday, 12 August 2022, the Applicant to file and serve all evidence and submissions upon which he relied in support of his application.
The Directions also provided that the matter would be listed for a substantive hearing of the merits on Thursday, 15 September 2022 on an estimate of 1 day.
Also on 27 July 2022, the parties were separately sent a notice of listing for the mention/conference scheduled for 5 August 2022. The notice of listing contained links for the Microsoft Teams listing. The notice of listing confirmed that both the Applicant, and someone from the Respondent, were required to attend the mention/conference, and required the parties to confirm their attendances by Wednesday, 3 August 2022.
On Thursday, 4 August 2022, my chambers sent a reminder email to the Applicant seeking confirmation of his appearance the following day, as at that stage no communication had been received from either the Applicant or his nominated representative. The email again advised the Applicant that he was required to attend the mention/conference. For completeness, I record that all of the correspondence described above was issued to the Applicant and his representative to the email addresses nominated by the Applicant on his Application.
Also on 4 August 2022, later in the day, my chambers contacted by the Applicant on his mobile telephone regarding his appearance for the following day. The Applicant claimed he was unaware the mention/conference was listed and said he hadn’t received any emails, which he said he thought went to ‘spam’. Whatever the correctness of those statements, the Applicant advised he would check his emails when got home and if needed anything resent, he would call chambers the following morning. He confirmed he would be attending the mention/conference, and indicated he thought his representative would as well.
Notwithstanding the Applicant’s assurances, he did not appear at the mention/conference listed on Friday, 5 August 2022. Further urgent telephone attempts at that time by my chambers to contact the Applicant or his representative were unsuccessful, and voice messages left on each occasion. While the Respondent did appear, the mention/conference did not proceed due to the Applicant’s non-attendance.
Later on Friday, 5 August 2022, my chambers sent an email to the Applicant and Mr Minney seeking a written explanation for the Applicant’s non-compliance by his failure to attend the mention hearing that morning. The explanation was required to be provided by 4:00pm, Monday 8 August 2022. Noting the Applicant’s position as a self-represented party, the possible consequences for non-compliance were specifically drawn to his attention, which included that his matter might be dismissed without being heard under s.587 of the Act. The Applicant was also told that he remained required to comply with the Directions issued on Wednesday, 27 July 2022, namely that he must also file and serve his evidence and submissions by 4:00pm on Friday, 12 August 2022.
No response was received by or on behalf of the Applicant by 8 August 2022.
On 9 August 2022, my chambers contacted the Applicant by telephone. The call was not answered and a message was left explaining where the call was from, and that the email he received the previous Friday required a written explanation. The message noted that the Applicant’s response was due the day before, and that his application may be dismissed without further notice to him if I did not hear from him.
I note that on 12 August 2022, the Applicant’s substantive material was due. Nothing has been filed and no responses to the above correspondence, or other explanation for non-compliance, provided.
Section 577 of the Act requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations.
Section 578 of the Act requires me when exercising powers under the Act to take various matters into account.
Section 587 of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. The section is 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 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.”
I consider that the clause “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) indicates that the power to dismiss an application is not limited to the specific matters enumerated in subsections (a) – (c). I am satisfied the power to dismiss can extend to circumstances where an applicant has failed to prosecute his or her case, including by non-compliance with directions or orders and a repeated failure to provide a proper explanation for that non-compliance.
When the power to dismiss an application for failure to prosecute is enlivened, it remains a matter of discretion as to whether the power ought be exercised. I am satisfied that the Applicant has not shown a willingness to prosecute his case. He failed to attend a hearing of the Commission despite being advised that he was required to attend, failed to comply with directions of the Commission and has not provided an explanation for his failure to comply with directions, which he was separately required to provide.
Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s.587 of the Act. In doing so, I have had regard to the requirements of section 577 and 578 of the Act.
An Order[1] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
[1] PR744790
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