Michael Marr v Cater Group Pty Ltd
[2022] FWC 2446
•14 SEPTEMBER 2022
| [2022] FWC 2446 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Marr
v
Cater Group Pty Ltd
(U2022/7016)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 14 SEPTEMBER 2022 |
Application for an unfair dismissal remedy - application dismissed
This decision relates to an unfair dismissal application by Mr Michael Marr pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against his former employer, Cater Group Pty Ltd.
The matter was listed for a directions hearing by telephone on 16 August 2022. On 16 August 2022 Mr Marr emailed my associate requesting that the directions hearing be rescheduled due to a medical appointment. The directions hearing was rescheduled to 17 August 2022.
On 17 August 2022, the directions hearing was held as scheduled. An email in following terms was sent from my chambers to both the applicant and the respondent the following day to confirm the directions issued:
“The Deputy President issues the following directions:
1. By 4pm on 7 September 2022, the applicant must file and serve the witness statements, documents and submissions on which he wishes to rely in support of his application.
2. By 4pm on 28 September 2022, the respondent must file and serve the witness statements, documents and submissions on which it wishes to rely.
3. By 4pm on 5 October 2022, the applicant must file and serve any witness statements, documents and/or submissions in reply to the material filed by the respondent.
4. The matter is listed for hearing, by Microsoft Teams video conference, at 10am on 11 October 2022 (NSW time). The dial in details for the hearing are included in the attached Notice of Listing.
5. By 4pm on 7 October 2022, each party must notify the other party and the Commission, in writing, as to which witnesses they intend to cross examine at the hearing.
6. At 9am on 10 October 2022 (NSW time), there will be a trial run of the video conferencing facilities. The dial in details for the trial are included in the attached Notice of Listing.
7. If a party wishes to rely on a witness statement which has been filed and served, the party must ensure that the maker of the witness statement attends the hearing, subject to a different ruling by the Deputy President.
8. Any witness who is called to give evidence at the hearing by video conference must not have any person other than their representative present in the same room as them, and must not be in communication with any person by electronic or other means (save for the video conference connection), when they give evidence by video conference.
9. Any witness who is not a party to the proceedings will not be permitted to be present or observe the hearing until they have given evidence.
10. Each witness must have a hard copy of their witness statement(s), including annexures thereto, with them when they are called to give evidence at the hearing.
11. The affirmation will be administered to each witness who gives evidence in the proceedings.
12. In the event that a party wishes to show a witness a document in cross examination (other than a document annexed to the witness’s witness statement filed in the proceedings), that party must email a copy of that document to the other party to the proceedings (who must provide it to their witness), and the Associate to Deputy President Saunders by 4pm on the business day prior to the hearing.
13. By 4pm on the business day prior to the hearing, each party must file and serve a list of the authorities they intend to read from, or take the Commission to, in final submissions.
14. An audio recording of the hearing will be made by the Fair Work Commission.
15. Each party has liberty to apply for the matter to be heard in person.
Information about preparing for a hearing can be found on the FWC website here (including templates for witness statements and submissions).
Please feel free to contact me with any questions.”
The applicant did not file with the Commission any material in accordance with the first direction above. On 8 September 2022, an email in the following terms was sent from my Chambers to Mr Marr:
“Dear Mr Marr
I refer to the directions issued in this matter on 18 August 2022 (below).
In those directions you were directed to file with the Fair Work Commission, and serve on the Respondent, witness statements, documents and submissions you intend to rely on in support of your application in this matter by no later than 4pm on 7 September 2022. No such witness statements, documents and submissions have been filed.
The Deputy President extends the time by which you must file and serve on the Respondent, witness statements, documents and submissions you intend to rely on in support of your application in this matter to no later than 4pm on 9 September 2022.
If nothing is filed in support of your application by that time, your unfair dismissal application may be dismissed without further notice to you.
If you wish to discontinue (i.e. withdraw) your application, you may do so by stating, in an email in reply to this email, that you wish to discontinue your application against Cater Group Pty Ltd. Alternatively, you may wish to call me on the below listed number to discontinue your application over the telephone.
I note that if you do not discontinue your application and the Commission dismisses your application because you have not filed any material in support of your application, a publicly available decision must be published on the Fair Work Commission website. The decision will indicate that you have failed to comply with directions issued by the Commission and that your unfair dismissal application was consequentially dismissed.”
On 12 September 2022 my Associate attempted to telephone to Mr Marr about the matter and as the call was not answered, a voicemail message requesting a return call was left. A further telephone call was made later on that same day, again, the call was not answered and a voicemail message requesting a return call was left. Mr Marr has not responded to these messages.
A further email was sent from my chambers to Mr Marr on 12 September 2022 as follows:
“Dear Mr Marr
I refer to my previous email sent to you on 8 September 2022 (copy below).
We have not had any response from you to our previous email. We have also left messages for you to return our calls.
Your unfair dismissal application will be dismissed if we do not hear from you by 4pm tomorrow - Tuesday, 13 September 2022.”
There was no response to this correspondence or any correspondence from Mr Marr since the directions hearing on 17 August 2022, nor has any material been filed to comply with the directions.
In light of the applicant’s failure to comply with the directions made on 16 August 2022, together with the absence of any communication from the applicant, I have decided to exercise my discretion pursuant to s.587(1) of the Act to dismiss the applicant’s unfair dismissal application against the respondent in these proceedings. The application is therefore dismissed, the hearing scheduled to take place on 11 October 2022 is vacated, and the directions made on 16 August 2022 are vacated.
DEPUTY PRESIDENT
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