Nathan Radford v Auz Truss & Frames Pty Ltd

[2024] FWC 2873

[2024] FWC 2873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nathan Radford
v

Auz Truss & Frames Pty Ltd

(U2024/10796)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 OCTOBER 2024

Application for an unfair dismissal remedy – application deceased prior to conciliation – no reasonable prospects of success – application dismissed.

1. On 12 September 2024, Mr Nathan Radford (the Applicant) lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Applicant named Auz Truss & Frames Pty Ltd as the Respondent (the Respondent) to his application.

1. A conciliation conference before a staff conciliator of the Commission was listed for Wednesday, 9 October 2024. When Mr Radford could did not attend, the conciliation conference could not take place. The Commission attempted to contact Mr Radford on his nominated telephone number four times on 9 October 2024. Three voicemail messages were left requesting that Mr Radford urgently contact the Commission. The fourth phone call was answered. The person who answered the call was described as being extremely distressed. She advised that the Applicant had passed away.

1. The matter was subsequently referred to me for consideration.

Consideration

1. Deputy President Gostencnik in Stan v Frontline Australasia[1] (‘Stan’) considered, in circumstances where the applicant had passed, whether another person could proceed with an application for relief under s.394 of the Act made by the applicant prior to passing away. On this point, the Deputy President relevantly made the following observation:

“In my view, the personal and discretionary nature of the remedy that might have been available to the Applicant had he succeeded in his application and the nature of the right to apply for a remedy makes it unlikely that the right to bring and maintain the application is something that may be assigned, transmitted, devolved or passed to another person even assuming there is power to make such an order.”[2]

1. In Rohrlach v L.M Robertson & P.F. Robertson T/A PF & LM Robertson,[3] (‘Rohrlach’) Commissioner Simpson paraphrased the observations of Deputy President Gostencnik in Stan as follows, which I adopt:

• There is a requirement for evidence of legal authority to purport to continue a remedy for unfair dismissal application;

• There is no rule in the Fair Work Commission Rules 2024 contemplating capacity to continue proceedings in the event of death as is contemplated in the Federal Court Rules 2011;

• There is no express power or provision in the Act allowing the substitution of a party in an unfair dismissal application;

• The right to make an unfair dismissal remedy application under the Act is personal to the dismissed employee and is non-assignable;

• The personal and discretionary nature of the remedies available, had the application been successful, make it unlikely that the right to bring and maintain the application is something that can be assigned, transmitted, devolved or passed to another person (assuming such a power exists);[4]

• If compensation was contemplated as a potential remedy, this remedy is intertwined with and not severable from the discretionary considerations relating to an order for reinstatement; and

• The Applicant cannot be cross-examined on any disputed facts, and this supports a conclusion that the application has no reasonable prospect of success. In Stan and Rohrlach, the applications were similarly dismissed.

1. Section 587(1) of the Act relevantly 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.”

1. In line with the findings in Stan and Rohrlach, I consider that Mr Nathan Radford’s death prevents any other person from either pursuing or discontinuing the application. I am satisfied the right to pursue an unfair dismissal remedy application as conferred by the Act is personal and non-assignable and, for this reason, and when considering the inability of the Applicant to be cross-examined by the Respondent, I am satisfied that the application has no reasonable prospects of success.

1. I dismiss the application pursuant to s.587(1)(c) of the Act and an order[5] to this effect will be issued with this decision. 

DEPUTY PRESIDENT

[1] [2014] FWC 5457.

[2] Ibid at [9].

[3] [2018] FWC 2798.

[4] As noted by the Commissioner, the Deputy President determined that he did not need to consider this matter to finality.

[5] PR780311.

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<PR780310>