Mr Gary Robert Marsh v The Trustee for Jackson Family Trust
[2024] FWC 1202
•8 MAY 2024
| [2024] FWC 1202 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gary Robert Marsh
v
The Trustee For Jackson Family Trust
(U2024/2953)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 8 MAY 2024 |
Application for an unfair dismissal remedy – non-compliant applicant – s 587 motion to dismiss – application dismissed
These are published reasons for a decision delivered ex tempore on 7 May 2024.
On 14 March 2024 Mr Gary Robert Marsh (Mr Marsh or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against his former employer The Trustee For Jackson Family Trust (ACN 612295673) trading as Peter Jackson Australia (Peter Jackson or the respondent).
Upon making the application Mr Marsh was represented by SMB Workplace & Employment Law (SMB or the applicant’s representative).
Peter Jackson oppose the application.
Background
The matter was listed for conciliation before a Commission staff member on 17 April 2024. The respondent and the applicant’s representative attended. The applicant did not attend. The applicant’s representative had been unable to make contact with the applicant in the week prior to the listed conciliation.
A Notice of Listing for the staff conciliation had been issued to all parties on the morning of 28 March 2024. A further reminder was sent to the applicant and the respondent via SMS at 6:29pm on the evening of 16 April 2024.
Staff conciliation was listed for 9:15am on 17 April 2024. The staff conciliator attempted to contact the applicant via telephone at 9:18am, 9:23am and again at 9:30am. The applicant’s representative also attempted to contact the applicant. The applicant failed to attend the conciliation or respond to any of the above calls. Conciliation was not further rescheduled.
The matter was then allocated to me.
On 1 May 2024 I conducted a directions hearing.
Peter Jackson attended. Mr Marsh did not attend. The applicant’s representative attended but indicated that it had no current instructions from the applicant, had continued to be unable to make contact and foreshadowed filing a Notice of Ceasing to Act if future attempts at contact were unsuccessful. The directions hearing was unable to proceed further. It was adjourned to 7 May 2024.
I issued the following directions on 1 May 2024:
NOTING THAT:
· Mr Gary Robert Marsh (applicant) failed, without explanation, to attend a directions hearing before me on 1 May 2024 in circumstances where he had also been non-responsive to attempted telephone contact by chambers and had earlier failed to attend a conciliation on 17 April 2024 which had been listed by a Commission staff conciliator;
· At the directions hearing on 1 May 2024 Mr Bourne was conditionally given permission to appear for the applicant for the purpose of advising the Commission that he had no current instructions from the applicant and had not been able to make contact with the applicant since prior to the scheduled conciliation on 17 April;
· The employer appeared at the directions hearing on 1 May 2024; and
· The Commission indicated at the 1 May 2024 hearing that serious doubt existed as to whether the applicant was meeting his minimum obligations as a litigant in the unfair dismissal jurisdiction:
THE COMMISSION DIRECTS as follows:
[1] This matter is listed for resumed directions and non-compliance hearing before Deputy President Anderson at 4:00 PM (ACST) / 4:30PM (AEST) on Tuesday 7 May 2024 by video. A Notice of Listing is attached.
[2] Mr Gary Robert Marsh is DIRECTED to attend the resumed directions and non-compliance hearing personally (with or without a representative) by video per the details contained in the Notice of Listing.
[3] Mr Gary Robert Marsh is DIRECTED to provide a written explanation to the Commission (copied to the respondent) of his reason or reasons for non-attendance at the 1 May 2024 directions hearing and the 17 April 2024 conciliation by close of business (5.00pm ACDT) on Friday 3 May 2024.
[4] If Mr Gary Robert Marsh wishes to discontinue his application in advance of the resumed directions and non-compliance hearing on Tuesday 7 May 2024, he may do so by written notice to the Commission, in which case the obligations under these directions will cease to apply.
[5] Non-compliance with these directions may disadvantage the applicant. The applicant is advised that should the applicant not respond to these directions as required, or not prosecute his application in a manner considered by the Commission to meet the minimum necessary obligations of a litigant, the Commission may on the employer’s application (s 399A) or of its own motion (s 587) further consider whether the application should be summarily dismissed without any further proceedings or notice and make a decision on that question.
[6] I grant both parties liberty to apply should further or amended directions be sought, consistent with the efficient conduct of proceedings. (emphasis in original)
The Directions were sent to the last advised email address of Mr Marsh, as well as to his representative.
Mr Marsh failed to provide a written explanation to the Commission (copied to the respondent) of his reason for non-attendance at the 1 May 2024 directions hearing as required by Direction [3] above.
On 7 May 2024 at 3:27pm the applicant’s representative filed a ‘Form F54 – Notice that lawyer or paid agent has ceased to act for a person’.
At 4.00pm on 7 May 2024 I conducted the re-scheduled directions and non-compliance hearing.
The respondent attended.
Mr Marsh failed to attend the resumed hearing on 7 May 2024 as required by Direction [2] above. No advance notice was provided by Mr Marsh of his non-attendance nor was a request for rescheduling made.
At 4.02pm on 7 May 2024 (immediately after the time the hearing was listed to commence) my Associate telephoned Mr Marsh endeavouring to alert him to the hearing and that he had been directed to attend. The call was not answered. A voicemail was left requesting a call back. No such call was received.
At the hearing on 7 May 2024 the respondent expressed disappointment at not being afforded the opportunity to defend the matter and expressed the belief they had treated Mr Marsh fairly. The respondents had no opposition to the Commission summarily dismissing the application for non-compliance reasons.
After hearing the respondent and considering the matter, I determined that the application be dismissed under s 587 on the ground that it is not being actively prosecuted by Mr Marsh in accordance with the minimum obligations required of an applicant and thus has no reasonable prospects of success. I ordered accordingly.
The following are my reasons.
Consideration
Section 587 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.
(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.” (notes omitted)
No communication has been received from Mr Marsh since the aborted conciliation and since the matter had been referred to me for determination. Nor was the applicant’s representative able to make communication, explain the applicant’s non-participation in proceedings or secure updated instructions.
More particularly, Mr Marsh did not attend the proceedings before me on 1 May 2024 or 7 May 2024 despite being sent the relevant Notices of Listings. Further, Mr Marsh did not provide advance notice of an inability to attend and has not otherwise been responsive to the Notices of Listing or related directions.
Thus, the applicant’s failure to attend or be responsive has put both the Commission, his then representative and the employer to unproductive cost and effort and inhibited the efficient conduct of the application.
Mr Marsh’s failure to attend the hearing on 7 May 2024 is a serious matter because it followed his failure to attend the week prior and was in breach of Direction [2] to attend. This weighs in favour of dismissing the application under s 587.
The breach of Direction [3] is also material given that Mr Marsh has provided no explanation to the Commission or the respondent for the non-attendance on 1 May 2024 despite being directed to do so. This also weighs in favour of dismissing the application under s 587.
It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. These are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free.
Mr Marsh was put on notice by my directions of 1 May 2024 that his application was at risk of being summarily dismissed yet he has still failed to be responsive or compliant.
I was satisfied, in light of Mr Marsh’s non-compliance that his application had no reasonable prospects of success as it was not being actively prosecuted to a minimum required level. Section 587 was enlivened.
There were no discretionary reasons not to exercise the power on the Commission’s own motion. The employer did not oppose dismissal on this basis. Mr Marsh had but failed to take an opportunity to be heard on the question and to regularise the conduct of his application.
Conclusion
Mr Marsh’s application U2024/2953 was dismissed under s 587. An order was made at the 7 May 2024 hearing and a formal Order[1] to this effect is issued in conjunction with the publication of these reasons.
DEPUTY PRESIDENT
Appearances:
No appearance by the applicant.
Mr N Jackson for the respondent.
Hearing details:
2024.
Adelaide (via video)
May 7.
[1] PR774659
Printed by authority of the Commonwealth Government Printer
<PR774658>
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