Mr Paul McGuane v Metcash Trading Limited

[2025] FWC 268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.65B - Application for a dispute about requests for flexible work arrangements

Mr Paul McGuane
v

Metcash Trading Limited

(C2024/8945)

COMMISSIONER LEE

MELBOURNE, 3 FEBRUARY 2025

Application to deal with a dispute about the right to request for flexible working arrangements-no reasonable prospects of success-application dismissed

On 12 December 2024, Mr Paul McGuane (the Applicant) made an application to the Fair Work Commission (the Commission) for an application to deal with a dispute about the right to request for flexible working arrangements pursuant to s.65B of the Fair Work Act 2009 (the Act).

My Chambers wrote to the parties on 17 December 2024 asking Metcash Trading Limited (the Respondent) to respond to the information set out in the application and notifying the parties of a listed conference before the Commission.

The Respondent provided a response on 18 December 2024 stating that the Applicant’s flexible working arrangement had already been approved. Consequently, my Chambers wrote to the Applicant asking him if the matter was now resolved given the Respondent’s information.

The Applicant replied indicating that he wished to continue with the application as there was a scheduled review in January.

The conference was originally listed for 16 January 2025 but had to be rescheduled to 23 January 2025 due to unforeseen circumstances of the Commission.

The Respondent attended the scheduled conference on 23 January 2025 however, the Applicant did not attend, and my Chambers was unable to make contact with him. During the conference the Respondent informed the Commission that the Applicant had recently resigned from his employment with 31 January 2025 being his last day of work.

My Chambers wrote to the Applicant after the conference, on 23 January, stating that if he wished to continue with the application, he would need to provide reasons for his non-attendance and reasons as to why his application should not be dismissed given his recent resignation.

The Applicant responded on the same day in the following words:

“I had a family matter to attend, and the conference was rescheduled because the FWC couldn’t make it last week. Yes, I’ve resigned from my role. The company’s behavior regarding flexible work hours and its overall conduct create an unsuitable environment for me to continue working there. The culture and management of Metcash are appalling and extremely toxic towards its workers. It’s a shame the FWC has decided against pursuing this matter further, but it won’t be long before someone else raises similar complaints against Metcash due to its horrible employment practices.”

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.

Section 587(1)(c) allows the Commission to dismiss applications that have no reasonable prospects of success. Section 65B of the Act allows the Commission to deal with disputes about flexible working arrangements between an employee and an employer. As the Applicant is no longer working for the Respondent, he is not considered an employee and the request for a flexible working arrangement is no longer fruitful given the Applicant does not work there anymore. Therefore, the application appears to be without any reasonable prospects of success.

Accordingly, the application is dismissed under s.587(1)(c) of the Act and an order[1] to this effect will be issued concurrently.

COMMISSIONER

[1] PR783915.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was asked to consider an application by Mr Paul McGuane against Metcash Trading Limited, seeking a resolution to a dispute regarding a request for flexible working arrangements under section 65B of the Fair Work Act 2009. Mr McGuane alleged that Metcash had not properly addressed his request for flexible work arrangements and that the working environment was toxic. The Commission was asked to intervene and address the dispute. The case involved determining whether the application had reasonable prospects of success and whether it should be dismissed.

The legal issues before the Commission included whether Mr McGuane's application had reasonable prospects of success and whether the application should be dismissed. The central issue was whether Mr McGuane still had standing to pursue the matter as he had resigned from his position at Metcash, and the flexible working arrangement request was no longer relevant. The Commission had to consider section 587 of the Act, which allows for the dismissal of an application if it has no reasonable prospects of success. Additionally, the Commission had to assess whether the application was frivolous or vexatious, and whether it met the criteria for dismissal under the Act.

The Commission found that Mr McGuane's application did not have reasonable prospects of success. Since Mr McGuane had resigned from his employment with Metcash, he was no longer an employee and therefore could not pursue the matter relating to the flexible working arrangement. The Commission also noted that Mr McGuane had not attended the listed conference, and his reasons for non-attendance did not provide sufficient grounds to continue with the application. Given these factors, the Commission dismissed the application under section 587(1)(c) of the Act.

An order was issued dismissing the application. The Commission determined that Mr McGuane's request for flexible working arrangements was no longer relevant as he was no longer employed by Metcash, and thus, the application had no reasonable prospects of success. The Commission concluded that the application was properly dismissed and that there was no need for further proceedings.

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