Mr Jack McNamara v Exalt Labour Solutions Pty Ltd

[2021] FWC 107

[2021] FWC 107

FAIR WORK COMMISSION

DECISION

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

Mr Jack McNamara
v
Exalt Labour Solutions Pty Ltd
(U2020/13754)

COMMISSIONER LEE MELBOURNE, 11 JANUARY 2021

Application for an unfair dismissal remedy.

Background

[1] An application for unfair dismissal remedy has been made by Mr Jack McNamara (the Applicant) against Exalt Labour Solutions Pty Ltd (the Respondent). The application was lodged on 16 October 2020.

[2] A conciliation conference before a Fair Work Commission staff conciliator was conducted on 5 November 2020. The conciliation was not successful in resolving the matter as the conciliation could not take place, and the matter was referred for arbitration.

[3] A notice of listing for a hearing and accompanying directions for filing materials were issued on 11 November 2020. The notice of listing also advised that the matter would be listed for Conference/Mention on 1 December 2020. The Respondent did not attend the Conference/Mention on Tuesday, 1 December 2020, and the matter was re-listed for the following day, Wednesday, 2 December 2020.

[4] At that Conference/Mention, the Respondent stated that the Applicant was receiving jobkeeper payments from the Respondent at the time of his alleged dismissal and was still receiving jobkeeper payments at the time of the Conference/Mention. The Applicant agreed that he was in receipt of jobkeeper payments.

[5] Subsequent to the Conference/Mention, my chambers sent the following correspondence via email on 10 December 2020:

“Dear Mr McNamara,

RE: U2020/13754 - McNamara, Jack v Exalt Labour Solutions Pty Ltd

I write in relation to the abovementioned application which has been allocated to Commissioner Lee.

The Commissioner notes that during the Conference held on Wednesday, 2 December 2020, it became apparent that you were at that time in receipt of jobkeeper payments, or were at least receiving jobkeeper payments at the time you alleged that you were dismissed.

In the circumstances, it would seem apparent that you were still an employee of the Respondent at the time that you lodged your application on 16 October 2020. Further, it would also seem apparent from what you advised that you were still an employee of the Respondent at the time of the Conference mentioned above.

An application for unfair dismissal remedy can only be made by a person who has been dismissed within the meaning of the Fair Work Act 2009.

If it is the case that you were not dismissed, the Commissioner’s provisional view is that the application has no reasonable prospects of success, as an application for unfair dismissal remedy can only be made by a person who has been dismissed. If you were not dismissed, the Commission does not have jurisdiction to deal with the matter.

NEXT STEPS

You may wish to consider discontinuing your application. If you wish to do so, please find attached a Form F50 – Notice of Discontinuance, which you can fill out and send back to us. The matter will then be closed. If you were not dismissed, you can lodge another application if you are dismissed at a later date.

Alternatively, if you do not wish to discontinue the application, the Commissioner will list the matter for Hearing on the jurisdictional point. That is, to establish whether the you are eligible to make an application to the Commission. The Commissioner will make a determination regarding the jurisdictional point prior to any further programming of the matter.

Please provide a response by close of business tomorrow, Friday, 11 December 2020.”

[6] The Applicant was subsequently contacted by my chambers via telephone on or around 1:40 pm on 11 December 2020. The email was brought to the Applicant’s attention, and he agreed that he would reply to it by close of business that day. No response was received from the Applicant by the stipulated date, nor has he responded to any other contact made by my chambers since.

[7] Given the lack of response, the matter was listed for a non-compliance hearing at 10:00 am on Friday, 18 December 2020. The Applicant failed to attend that hearing and was subsequently contacted numerous times (at least twice before 10:00am, and three times after 10:00am) via telephone by my chambers to no avail. The Respondent was also contacted but indicated that he could not participate in the hearing because he was working on a roof.

[8] I issued directions on Friday, 18 December 2020, and confirmed my provisional view that the application has no reasonable prospects of success as it seems apparent based on information provided by both the Applicant and Respondent that the Applicant has not been dismissed within the meaning of s.386 of the Fair Work Act 2009 (the Act). Therefore, I held the provisional view that the application should be dismissed pursuant to s.587(1)(c) of the Act.

[9] I directed that the Applicant file with the Fair Work Commission, and serve on the Respondent, submissions and evidence in response to the provisional view expressed above by no later than close of business, Wednesday, 23 December 2020. The Applicant was also to advise if a hearing on the matter is sought by no later than close of business, Wednesday, 23 December 2020.

[10] I indicated that if there is no response from the Applicant to the directions by Wednesday, 23 December 2020, the application will be dismissed without any further notice.

[11] A response to the directions has not been received as of the date of this decision.

Consideration

[12] Subsequent to the Applicant’s failure to respond, I have determined to dismiss the application as the application has no reasonable prospects of success in light of the Applicant’s confirmation that he continues to receive jobkeeper payments and was, consistent with that, still employed by the Respondent when he made the application for unfair dismissal remedy. I have also determined to dismiss the application for want of prosecution pursuant to s.587 of the Act.

[13] Section 587 of the Act provides 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.”

[14] The power to dismiss an application, of course, should only be used cautiously. In this instance, the Applicant has not evinced sufficient effort to continue to pursue the application he has agitated, despite the Commission’s approaches.

[15] Section 587 of the Act, by way of its language affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act. 1

[16] In the Full Bench decision in Sayer v Melsteel, 2the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed toprosecute their case. The Full Bench noted (relevantly) at [16]-[17]:

“When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent's case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent's case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner's decision is consistent with that approach.”

[17] In the circumstances now before me, the Respondent has not provided a response to the Applicant’s claims by way of a Form F3 (despite the numerous requests to do so sent by my chambers). However, the Respondent expressed their position that the Applicant was receiving jobkeeper payments from the Respondent at the time of his alleged dismissal and was still receiving jobkeeper payments at the time of the Conference/Mention. The Applicant agreed that he was in receipt of jobkeeper payments. The Respondent, on the face of its claims, has “a defence of substance” against the claims, or at least “a defence to the action”.

Conclusion

[18] I exercise my discretion in this regard in the knowledge that the information provided by parties indicate, even if at the prima facie level, a defence against the claims as made. The Applicant has failed to prosecute his claim despite being afforded opportunity to do so. The Applicant has not provided any information to contradict the position stated at the conference that he was receiving jobkeeper payments and is still employed by the Respondent. In all of the circumstances, the application has no reasonable prospects of success. I dismiss the application for those reasons. An order dismissing the application will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR726083>

 1   see Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33

 2   [2011] FWAFB 7498