Mr Robert Emmett Bradley v BJ Gerrits & Sons Pty Ltd
[2024] FWC 2312
•30 AUGUST 2024
| [2024] FWC 2312 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Robert Emmett Bradley
v
BJ Gerrits & Sons Pty Ltd
(U2024/8044)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 30 AUGUST 2024 |
Application for an unfair dismissal remedy – non-compliant applicant – s 587 motion to dismiss – application dismissed
On 11 July 2024, Mr Robert Emmett Bradley (Mr Bradley 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 BJ Gerrits & Sons Pty Ltd (ABN 76605290864) trading as Gerrits Plastering (BJ Gerrits & Sons or the respondent).
BJ Gerrits & Sons responded on 25 July 2024 opposing the application. The response was filed by managing director Mr Benjamin Gerrits.
Background
Neither the applicant nor respondent appeared at a conciliation before a staff conciliator listed on 12 August 2024.
The respondent subsequently declined to consent to the staff conciliation being relisted citing alleged threats of violence by Mr Bradley towards himself and other members of the respondent’s staff.
Accordingly, the matter was allocated to me.
On 22 August 2024 I conducted a directions hearing.
Mr Bradley failed to attend. BJ Gerrits & Sons were in attendance.
I issued directions on 22 August 2024. The Directions read:
“NOTING THAT:
Mr Robert Emmett Bradley (the applicant) failed, without explanation, to attend a directions hearing which had been scheduled before me on 22 August; and
BJ Gerrits & Sons Pty Ltd were in attendance; and
On 16 August 2024 a Notice of Listing was issued to Mr Bradley and BJ Gerrits & Sons Pty Ltd (the respondent) which indicated:
·It is your responsibility attend a proceeding, proceedings conducted by telephone or video conference are no exception.
·The Deputy President will not dial you into the proceeding. It is your responsibility to be present at the appointed time and failing to do so may disadvantage a party in the conduct or management of the matter by the Deputy President.
·Parties not attending proceedings risk the matter being dealt with in their absence.
THE COMMISSION DIRECTS as follows:
[1] The applicant is DIRECTED to provide a written explanation to the Commission (copied to the respondent) of his reason for non-attendance at the 22 August 2024 directions hearing by close of business (5.00pm ACDT) on Friday 23 August 2024.
[2] The applicant is DIRECTED to provide to the Commission and to BJ Gerrits & Sons Pty Ltd by 12.00 noon (ACST) on Thursday 29 August 2024 in relation to the merits and remedy of his unfair dismissal application:
·a written submission of position or argument;
·a witness statement from each witness he intends to call to give evidence at the hearing (including his witness statement);
·a copy of any document he intends to rely upon (this includes hard copy or electronic material); and
·details of any relevant post-dismissal employment or earnings.
[3] If the applicant complies with directions [1] and [2], the Commission will consider whether to relist his unfair dismissal application for a further directions hearing.
[4] If the applicant wishes to discontinue his application, he may do so by written notice to the Commission copying in the other side, 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.”
The directions of 22 August 2024 were sent to the last advised email address of both Mr Bradley and BJ Gerrits & Sons.
Mr Bradley failed to provide a written explanation of his reason for non-attendance at the 22 August 2024 Directions Hearing as required by direction [1] above.
Mr Bradley also failed to file materials by 12.00 noon (ACST) on Thursday 29 August 2024 or at all, as required by direction [2] above.
No other responses have been received from the applicant. Nor was any further response received from the respondent to indicate a position on the Commission summarily dismissing the application for non-compliance reasons beyond support for such a course advised at the 22 August 2024 directions hearing.
Consequent on the above, I have determined that the application be dismissed under s 587 on the ground that it is not being actively prosecuted by Mr Bradley in accordance with the minimum obligations required of an applicant. The application thus has no reasonable prospects of success.
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 the 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 Bradley since the directions hearing of 22 August 2024. Mr Bradley has failed to comply with his obligations under the directions of the above date.
More particularly, Mr Bradley did not attend proceedings before me on 22 August 2024 despite being sent the relevant Notice of Listing. Further, Mr Bradley did not provide advance notice of an inability to attend and has not otherwise been responsive to the subsequent directions or emails sent by my chambers. Furthermore, Mr Bradly did not provide explanations or materials required by the directions, nor an explanation for not doing so.
Thus, the applicant’s failure to attend or be responsive has put both the Commission and the respondent to unproductive cost and effort and inhibited the efficient conduct of the application.
These considerations weigh 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 Bradley was put on notice by my directions of 22 August 2024 that his application was at risk of being summarily dismissed yet he has still failed to be responsive or compliant.
I am satisfied, in light of Mr Bradley’s non-compliance, that the application has no reasonable prospects of success as it has not been actively prosecuted to the minimum required level. Section 587 is enlivened.
There are no discretionary reasons not to exercise the power on the Commission’s own motion. Mr Bradley had, but failed to take, an opportunity to be heard on the question and to regularise the conduct of his application.
Conclusion
Application U2024/8044 is dismissed under s 587. An Order[1] to that effect is issued in conjunction with the publication of these reasons.
DEPUTY PRESIDENT
[1] PR778752
Printed by authority of the Commonwealth Government Printer
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