Mr Robert Schenck-Reid v T.O.R Products Trust Summary

[2024] FWC 1813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Robert Schenck-Reid
v

T.O.R Products Trust

(U2024/4452)

COMMISSIONER PLATT

ADELAIDE, 11 JULY 2024

Application for an unfair dismissal remedy – application dismissed.

On 17 April 2024, Mr Robert Schenck-Reid lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with T.O.R Products Trust (the Respondent).

The matter was listed for a staff conciliation on 23 May 2023.

The Applicant sought an adjournment of the staff conciliation on 4 May 2024 and 23 May 2024, providing the following reasons:

4 May 2024
“I am now working full-time at Sydney tools and wont be able attend the consolidation between tor and myself 7am -5.30pm everyday !!”

23 May 2024
“I can not atend the meeting today as i must work ! Must reschedule to 24th of may 2024 any time !! Day off !!”

The adjournment request was refused and the conciliation did not proceed due to the Applicant not attending.

On 5 June 2024, the Commission emailed the Applicant proposing a second conciliation, referral to a Member for formal hearing or withdrawal of the application. On 10 June 2024, the Applicant requested the matter be referred for formal hearing.

The matter was allocated to my Chambers on 14 June 2024.

On 18 June 2024, my Chambers issued a Notice of Listing for a Directions Conference via telephone at 3:30pm (SA) Thursday, 20 June 2024. The Applicant did not attend that Conference.

On 20 June 2024, my Chambers issued a Notice of Listing with Directions containing a date for arbitration and a timeline for the filing of submissions. Paragraph [1] provided that if the Applicant fails to comply with these Directions (in particular the requirement to submit his materials by 4 July 2024) his application will likely be dismissed for want of prosecution without further hearing.

On 4 July 2024, the Applicant was sent an email reminder to file his material and was notified that a failure to file or communicate with Chambers would likely result in the application being dismissed (for want of prosecution). On 4 July I determined to dismiss the application.

On 5 July 2024, the Applicant communicated the following to Chambers:
“I work almost every day in a new job that the days have beenbchanging shift times i do apologies if we could re schedule for asap i hnow have a clear roster to organise time !!"sorry again i don't wanna loose my job over waterworld so i do want a resolution in this matter the small amount of money i bellieved i am owed clearly ring kelly or steven as them are 15 min without pay !!”

To date the Applicant has not filed his material.

LEGISLATION

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.”

It is apparent to me that the Applicant has failed to prosecute his case since its lodgement. The Applicant has been repeatedly warned that his failure to engage and/or comply with the Directions could result in the dismissal of his application. In my view, the circumstances above justify the dismissal of the application in accordance with s.587, and I so order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was an application by Mr Robert Schenck-Reid, who sought an unfair dismissal remedy against T.O.R Products Trust, his former employer. Mr Schenck-Reid lodged his application on 17 April 2024, and despite multiple opportunities to proceed with the matter, he failed to engage with the Commission's processes, resulting in the dismissal of his application. The primary issue for the Commission was whether Mr Schenck-Reid's application should be dismissed under section 587 of the Fair Work Act 2009, given his repeated failures to comply with procedural directions and deadlines.

The Commission considered the conduct of Mr Schenck-Reid in light of the statutory provisions allowing for the dismissal of an application if it is not prosecuted. Section 587(1)(c) of the Act permits the dismissal of an application if it has no reasonable prospects of success. Commissioner Platt found that Mr Schenck-Reid's failure to attend scheduled conciliations and his lack of engagement with the Commission's directives indicated that his application had no reasonable prospects of success. Multiple warnings and reminders were issued to Mr Schenck-Reid, yet he did not file his required submissions or communicate effectively with the Commission. This behaviour, combined with his failure to attend the Directions Conference and his failure to adhere to the subsequent timelines, led the Commission to conclude that the application should be dismissed.

In light of the aforementioned findings, Commissioner Platt dismissed Mr Schenck-Reid's application for unfair dismissal remedy. The decision was based on the Applicant's failure to prosecute his case and his disregard for the procedural requirements set forth by the Fair Work Commission. The Commission found that Mr Schenck-Reid's conduct warranted the dismissal of his application under section 587 of the Fair Work Act.

Mr Robert Schenck-Reid v T.O.R Products Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established