Mr Alexander Clark v Hudson Meats Co Pty Ltd T/A Hudson Meats

[2018] FWC 7358

[2018] FWC 7358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Mr Alexander Clark
v
Hudson Meats Co Pty Ltd T/A Hudson Meats
(U2018/10617)

DEPUTY PRESIDENT SAMS SYDNEY, 18 DECEMBER 2018

Application for unfair dismissal remedy – allegations of poor performance – failure to attend Commission proceedings – no explanation and no contact with the Commission – failure to prosecute the case – application dismissed.

[1] On 13 October 2018, Mr Alexander Clark (the ‘applicant’) made an application for a remedy for unfair dismissal, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’). The applicant commenced employment with Hudson Meats Co Pty Ltd (‘Hudson Meats’ or the ‘respondent’) on 29 June 2017 and his dismissal took effect on 6 October 2018.

[2] On 23 October 2018, Hudson Meats filed an Employer Response (Form F3) opposing the application on the grounds of the applicant’s poor performance in that he was often late for his shifts, failed to attend at all for some, and in one instance, had left a shift early with no reason or explanation. Hudson Meats further claimed that the applicant would arrive to work when not scheduled and complete a timesheet reflecting false entries.

[3] The matter was listed for conciliation by telephone before a Fair Work Commission Conciliator on 8 November 2018. However, the conciliation could not take place as the applicant was not able to be contacted at the time. On 8 November 2018, correspondence was sent to the parties indicating that if either party sought a further conciliation, such a request would need to be made within two working days. The respondent complied with the Conciliator’s request. On 16 November 2018, the matter was assessed by the Conciliator and remitted to me for determination as the applicant had not responded to the correspondence of 8 November 2018.

[4] On 23 November 2018, a Notice of Listing was sent from my Chambers to the parties advising that the matter was listed for conference before me on 29 November 2018, with a hearing scheduled for 22 January 2019. The notice also required the applicant to file and serve a statement in support of his claim by 14 December 2018, with the respondent’s response to follow. The conference did not take place as both parties were not contactable; albeit that voice messages were left for both of them.

[5] On that date I had cause to have an email sent to the applicant as follows:

‘I refer to the notice issued to you on 23 November 2018 in respect to the case management of your unfair dismissal application.

The notice directed your attendance at a conference with Deputy President Sams today (29/11/2018) at 11.30am.  You did not attend or give any advanced notice of your inability to do so.

Accordingly, His Honour directs that you advise his Chambers by 4.00pm on Friday, 30 November 2018 as to the reasons for your non-attendance.  A failure to do so, or if His Honour is not satisfied you have a satisfactory explanation, may result in your unfair dismissal application being dismissed, without further recourse to you.

Alternatively, you can advise that you no longer intend to proceed with your application against your former employer.’

[6] As of this date, the applicant has not responded to any of the Commission’s email correspondence or phone communications. He displays a complete indifference to prosecuting his unfair dismissal claim and the employer should not be burdened by being required to further engage in this matter.

[7] Section 587(1) of the Act provides:

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.

(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.

[8] The words, ‘Without limiting when FWC may dismiss an application,’ at the commencement of s 587(1) of the Act makes clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s 587(1)(a), (b) or (c).

[9] Section 399A of the Act provides as follows:

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.

(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.

[10] The power to dismiss an application where there is unreasonable or explained non-compliance with the Commission’s listings or directions is exercisable by the Commission, as a matter of discretion. So much so is evident by the express language used in s 399A and s 587 of the Act. Given the circumstances described above, I am satisfied that I should exercise my discretion, under s 399A and s 587(3)(a) of the Act, and dismiss the applicant’s unfair dismissal application.

[11] An order to that effect will issue with this decision.

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