Mark McDonald v Moranbah Plumbing & Contractors Pty Ltd

[2024] FWC 1516

[2024] FWC 1516

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark McDonald
v

Moranbah Plumbing & Contractors Pty Ltd

(U2024/5406)

DEPUTY PRESIDENT MASSON MELBOURNE, 12 JUNE 2024

Application for an unfair dismissal remedy – application dismissed pursuant to s 587.

1. On 13 May 2024, Mr Mark McDonald (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Moranbah Plumbing & Contractors Pty Ltd (the Respondent) was unfair. The Applicant was dismissed with effect on 18 March 2024 and filed his unfair dismissal application on 13 May 2024, which was outside the statutory 21-day filing period.

1. The matter was allocated to my Chambers on 22 May 2024 for determination. Following allocation of the matter, directions were sent to the parties on 23 May 2024 for the filing of materials in relation to the jurisdictional issue of whether to grant an extension of time for the filing of the application. The matter was listed for hearing to deal with the extension of time issue on 13 June 2024.

1. The directions sent to the parties relevantly included the following; 

“…………… 

SUBMISSIONS AND WITNESS STATEMENTS

[1] The submissions must include all relevant facts, dates and incidents to support all claims made.

[2] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.

[3] Please note that witness statements are designed to take the place of evidence-in-chief.

………………………. 

NON-COMPLIANCE WITH THESE DIRECTIONS

[6] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.

[7] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.

……………….” 

1. The Applicant failed to file his material in relation to the jurisdictional issue on or by close of business 31 May 2024 as required by the directions. Correspondence was then sent by my Chambers to the Applicant on the morning of 3 June 2024. That correspondence noted that the Applicant had failed to file his material as required by the directions and that if he failed to file his material by the close of business on 3 June 2024, he would be directed to attend a Non-Compliance Hearing.

1. The Applicant failed to file any material by the close of business on 3 June 2024 and nor did he contact my Chambers to seek an extension of time for the filing of his material. On 4 June 2024, a Notice of Listing for a non-compliance hearing to be held at 4.00pm on 6 June 2024 was then sent to the Applicant.

1. The Applicant did not join the non-compliance hearing by Teams on 6 June 2024. My Associate attempted to contact the Applicant on the afternoon of the non-compliance hearing on the phone number listed on the Form F2. A voice message was left by my Associate advising the Applicant of the non-compliance hearing and advising him to join the Teams meeting. The Applicant did not join the Teams meeting or return the call made by my Associate. As both the Applicant and Respondent failed to attend, the non-compliance hearing did not proceed.

1. Correspondence was sent to the Applicant by my Chambers on 7 June 2024 advising that I was considering dismissing his application pursuant to s 587 of the Act. The Applicant was invited to provide submissions by the close of business on Tuesday, 11 June 2024 as to why his application should not be dismissed. No submissions were filed by the Applicant in response to the correspondence sent to him on 7 June 2024.

Consideration

1. Turning now to whether the application should be dismissed, the relevant section of the Act provides as follows;

“587Dismissing 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 prospect of success.”

1. The Applicant has failed to prosecute his case beyond filing his Form F2 application and has demonstrated a pattern of non-compliance with directions of the Commission. He has done so by failing to file his materials by 31 May 2024 as required by the above-referred directions and failing to attend the non-compliance hearing listed for 6 June 2024. Furthermore, no extension of time has been sought by the Applicant in relation to his non-compliance with the directions. Nor has he provided an explanation for his non-compliance despite being afforded an opportunity to do so.

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). In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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