Nicholas Flesser v The Trustee for Delroy Marketing Trust & the Trustee for Walker Family Trust
[2024] FWC 2859
•15 OCTOBER 2024
| [2024] FWC 2859 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicholas Flesser
v
The Trustee For Delroy Marketing Trust & The Trustee For Walker Family Trust
(U2024/10998)
| DEPUTY PRESIDENT BELL | MELBOURNE, 15 OCTOBER 2024 |
Application for an unfair dismissal remedy – s.587 – failure to prosecute case – failure to file material by due dates – no reasonable prospect of success – application dismissed.
On 16 September 2024, Mr Nicholas Flesser made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (the Act). He alleges he was unfairly dismissed by the respondent, The Trustee For Delroy Marketing Trust & The Trustee For Walker Family Trust, on 9 September 2024. The respondent acknowledges that Mr Flesser was dismissed but says that the dismissal was not unfair, as it was a case of genuine redundancy.
In its Form F3 Employer Response, the respondent also raised a threshold jurisdictional objection, being that Mr Flesser earned more than the current high-income threshold ($175,000), and his employment was not covered by a modern award or enterprise agreement (s 382 of the Act). The respondent stated that Mr Flesser’s base salary was $180,000 per annum plus short-term incentives and superannuation.
On 3 October 2024, I issued directions to the parties to deal, as a threshold issue, with the high-income threshold question. Among other matters, those directions required Mr Flesser to provide an email, by 4.00pm AEDT on 9 October 2024:
· Stating what award (and classification) or enterprise agreement applied to his employment, given his annual rate of earnings appears to be above the high income threshold;
· Providing any key document(s) – eg an employment contract, position description – in support of his position.
The directions also listed the matter for a mention hearing (by Microsoft Teams) on Thursday, 10 October 2024 at midday AEDT.
Mr Flesser sent an email in response to the directions stating:
“I am not disputing the fact that I earned over the High Income threshold thus I don’t think the hearing is necessary.
I believe that my case should be covered under Adverse Action under General Protections.
I have been advised by Fair Work that the type of dismissal will be determined through the conciliation process.”
I separately note that Mr Flesser wrote to Commission registry staff on 19 September 2024, asking “I would like to follow up by asking if my case doesn't fall into the unfair dismissal bucket because of the high income threshold, should I then lodge a case for unlawful termination.” As Mr Flesser’s email to my chambers was appearing to indicate that he was now possibly intending to make a ‘general protections’ claim, my chambers corresponded to Mr Flesser in the following terms (substantive parts only):
“Your email states that you consider your matter “should be covered under Adverse Action under General Protections”. The application before Deputy President Bell is an application for an unfair dismissal remedy, made under s 394 of the Fair Work Act. The application form used is a Form F2, which is the application for an unfair dismissal claim.
An application alleging a dismissal in contravention of the general protection provisions of the Fair Work Act for adverse action is to made under s 365, using a Form F8A. A general protections claim is a different legal claim.
In general terms, section 725 of the Fair Work Act provides, among other matters, that a person cannot make a general protections claim while an unfair dismissal claim is on foot. There is also a 21 day period to file a general protections claim (beginning on the date the dismissal took effect). Fresh applications after this period can only be made if the Commission was satisfied there were “exceptional circumstances”, taking into account the matters in s 366 of the Fair Work Act.
You need to decide how you wish to proceed. You may wish to obtain advice on that question. It is not appropriate for the Deputy President to give advice.
In the meantime, the mention hearing listed for 12pm AEDT, Thursday 10 October 2024 remains confirmed. ”
Mr Flesser did not provide any information about what (if any) modern award or enterprise agreement might cover him in response to the directions. Rather, at 6.56pm AEDT on 9 October 2024, he wrote to chambers as follows:
“I have a last minute appointment tomorrow and will not be able to attend the hearing.
Could I please reschedule for early next week?”
While no explanation was given about the appointment referred to in Mr Flesser’s request to adjourn the mention hearing, I vacated the mention hearing. An email to the parties on the morning of 10 October 2024 was sent from chambers stating that the mention hearing was vacated (and would not be relisted). In relation to the high-income threshold issue, the email stated:
“The Directions dated 3 October 2024 are confirmed. For avoidance of doubt, Mr Flesser:
a. remains required to state what Award (and classification) or enterprise agreement applied to his employment, given his annual rate of earnings appears to be above the high income threshold. That was required to be provided yesterday. The Deputy President directs for that information to be provided by no later than midday tomorrow, 11 October 2024.
b. is to otherwise file evidence on the High Income Threshold issue (including his position on any Award coverage) by 17 October 2024.
In the absence of the Deputy President being told by Mr Flesser what Award (and classification) he says applied, the Deputy President puts Mr Flesser on notice that his application may be dismissed on the basis that there is no arguable Award covering him and, in circumstances where it is undisputed that his base salary exceeded the high income threshold of $175,000, the Deputy President would have no jurisdiction to determine the matter. ”
The email also reminded Mr Flesser that there was a separate issue concerning the respondent’s position on redundancy. That part of the email stated:
“The Deputy President notes that the relief sought by Mr Flesser in his Form F2 application for his claim is “an additional 6 months redundancy”. He also notes that the respondents Form F3 states that the dismissal was due to redundancy. This suggests there does not appear to be any dispute between the parties that Mr Flesser’s substantive role was made redundant. If Mr Flesser’s dismissal was in accordance with s389 of the Act, Mr Flesser’s application would be dismissed on that basis. While this issue is not being determined at the court listing on 1 November 2024, it is nonetheless an important issue that will remain for determination. Unless Mr Flesser will be contending that the requirements of s389 were not met (and the dismissal was otherwise unfair), the Deputy President asks Mr Flesser to reflect upon whether his application should proceed. [The extract of s 389 is omitted.]”
Mr Flesser did not provide any of the information and documents he was directed to provide nor any explanation about the failure to provide them. At 4.36pm AEDT on 11 October 2024, I sent a further email through chambers to Mr Flesser as follows (substantive parts only):
“The Deputy President notes that, despite the considerable period of time given for you to identify which Award and classification applies, you have not done so. No explanation has otherwise been received. This suggests that you either do not intend to do so (because you no longer intend to prosecute your case in accordance with the Directions that have been issued) or there is no relevant Award that applied to your appointment having regard to the seniority of your role.
In the circumstances, the Deputy President intends to dismiss your application on the grounds of failure to prosecute your claim and/or no reasonable prospects of success. He intends to do so on the basis of the material before him and ‘on the papers’, although any decision will not be issued until early next week. The parties will be sent a copy of any dismissal decision, which will also be published on the Fair Work Commission’s website. If you disagree with the Deputy President’s proposed course of action, please provide submissions and any supporting evidence (including addressing your failure to comply with the amended Directions) by midday AEDT, Monday 14 October 2024.
However, if it is the case that you no longer intend to pursue your unfair dismissal claim and wish to discontinue your matter, it is sufficient for you to send an email to chambers confirming that fact. If the matter is discontinued, the respondent will be notified, the directions and hearing vacated and the Commission’s filed will be closed. ”
Since his brief email on 9 October 2024, Mr Flesser has not communicated with the Commission at all.
Despite multiple opportunities to engage with Mr Flesser on a threshold jurisdictional element of his claim, namely meeting the requirements of s 382 of the Act, Mr Flesser has not provided an explanation at all, let alone any satisfactory explanation.
It is clear that Mr Flesser does not intend to prosecute his application. While it is not necessary for me to ascertain why this is the case, it is quite possibly because he cannot do so due to the high-income threshold issue or the redundancy issue.
Putting aside the applicant’s unexplained failure to comply with the directions (as extended), it is now very clear that he is not taking steps to prosecute his claim and I will dismiss the application for that reason under s 587 of the Act. The possibility of dismissal under s 587 was expressly communicated to the applicant in the correspondence from chambers on 11 October 2024.
Section 577 of the Act requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations. Section 578 of the Act requires me when exercising powers under the Act to take various matters into account, which I have done so.
Section 587(1) of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. Section 587(1) is 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.”
On the information before me so far, there is no identifiable award or enterprise agreement that could apply to Mr Flesser’s employment, despite directions for that information to have been provided. There appears no dispute that his income was otherwise about the high-income threshold. This demonstrates that Mr Flesser’s application has no reasonable prospects of success.
Independently, I consider that the clause “Without limiting when the FWC may dismiss an application” at the commencement of s.587(1) indicates that the power to dismiss an application is not limited to the specific matters enumerated in subsections (a) – (c). I am satisfied the power to dismiss can extend to circumstances where an applicant has failed to prosecute his or her case, including by non-compliance with directions or orders and a repeated failure to provide a proper explanation for that non-compliance.
When the power to dismiss an application for failure to prosecute or in the circumstances of s 587(1)(a) – (c) is enlivened, it remains a matter of discretion as to whether the power ought be exercised. I am satisfied that Mr Flesser has not shown a willingness to prosecute his case. He failed to comply with directions of the Commission and has not provided an explanation for his failure to comply with directions, including in circumstances where it was expressly foreshadowed that his application would be dismissed if that information was not provided.
Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s 587 of the Act, either on the basis of a want of prosecution or no reasonable prospects of success. In doing so, I have had regard to the requirements of sections 577 and 578 of the Act.
An Order[1] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
[1] PR780271
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