Mr Nathan Morgan v Deepwater Farming Company Pty Ltd (Australian Private Company)

[2018] FWC 1113

[2018] FWC 1113

FAIR WORK COMMISSION

DECISION

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

Mr Nathan Morgan
v
Deepwater Farming Company Pty Ltd (Australian Private Company)
(U2017/10072)

COMMISSIONER HUNT BRISBANE, 23 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] On 16 September 2017 Mr Nathan Morgan made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Morgan’s employment ceased with Deepwater Farming Company Pty Ltd (Australian Private Company) (Deepwater) in September 2017. Deepwater contended that Mr Morgan had not been dismissed but rather had resigned his employment.

[2] The parties participated in conciliation on 13 November 2017, however the application remained unresolved. The application was subsequently allocated to my Chambers and was listed for a Directions Conference on 16 January 2018. Both parties were in attendance by telephone.

[3] Directions were then issued on 16 January 2018, requiring Mr Morgan to file in the Commission and serve on Deepwater by 31 January 2018 an outline of submissions and evidence he wished to rely upon. Mr Morgan did not comply with this direction.

[4] My Associate attempted to contact Mr Morgan by telephone to discuss his failure to comply with the directions; the attempts were unsuccessful.

[5] On 5 February 2018 correspondence was issued from my Chambers to Mr Morgan directing him to provide a copy of any material he wished to rely upon, accompanied with a sufficient reason for his failure to comply with the directions issued on 16 January 2018. The communication stated that his application may be dismissed in the absence of any response.

[6] To-date Mr Morgan has not provided any response to the Commission’s directions or the correspondence of 5 February 2018. Mr Morgan has not made any contact with the Commission whatsoever since the Directions Conference on 16 January 2018.

[7] Section 587 of the Act 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.

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.”

[8] Mr Morgan made no attempt to contact the Commission to seek an extension to file his material. Despite this, Mr Morgan was granted an extension to file his material. Mr Morgan again failed to file any material, or contact the Commission to indicate any reason as to why he failed to comply with the further direction.

[9] There is no reasonable explanation as to why Mr Morgan did not respond to the emails sent to him by my Chambers or return the phone calls made to him. The emails were sent to the email address listed on Mr Morgan’s Form F2 and the Commission had received numerous emails from Mr Morgan prior to the Directions Conference.

[10] In Viavattene v Health Care Australia 1, a Full Bench of the Commission stated:

‘[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained “substantial arguments in response to the Applicant's contentions”. There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended “to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned” (s.381).’ [endnotes omitted]

[11] In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587 of the Act. The application is dismissed.

COMMISSIONER

<PR600595>

 1   [2013] FWCFB 2532 at [39]

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