Peter Dickson v AAA72 Pty Ltd
[2025] FWC 269
•30 JANUARY 2025
| [2025] FWC 269 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Peter Dickson
v
AAA72 Pty Ltd
(U2024/12416)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 30 JANUARY 2025 |
Application for an unfair dismissal remedy – applicant did not comply with directions – application dismissed
On 18 October 2024, Mr Peter Dickson made an application (the application) to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with AAA72 Pty Ltd (Respondent).
On 28 October 2024, the Respondent filed a Form F3 – Employer response to unfair dismissal application. The Respondent raised a number of jurisdictional objections to the application including:
a.Mr Dickson did not serve the complete the minimum employment period under s.383 of the FW Act;
b.Mr Dickson was not dismissed within the meaning of s.386 of the FW Act.
The matter was listed for a conciliation before a Commission staff conciliator on 12 November 2024, and did not resolve at this conciliation.
The matter was then listed for Member Assisted Conciliation and Directions conference by Video using Microsoft Teams, before me, on 9 January 2025.
After hearing from the parties, I issued directions for the filing and serving of materials (the Directions) and listed the matter for hearing in relation to the jurisdictional objections raised by the Respondent at 10:00am on 7 February 2025 via Microsoft Teams.
Mr Dickson did not provide his material as required by the Directions at 4:00pm on Thursday, 16 January 2025.
Mr Dickson emailed my Chambers at 4:45pm on Thursday, 16 January 2025 asking for an extension to file his materials and advising that he wished to accept a settlement offer made by the Respondent.
At 2:12pm on 17 January 2025, my Chambers emailed Mr Dickson to notify him that he must confer with the Respondent in relation to the extension and settlement offer.
At 12:51pm on 21 January 2025, my Chambers emailed Mr Dickson requesting an update on the settlement discussions and reminding him to submit his materials. Following the email, my Associate called Mr Dickson at 4:01pm on 21 January 2025 and advised that if the materials are not filed, the matter may be dismissed under s.587 of the FW Act. Mr Dickson assured my Associate that he would email Chambers with either an update on settlement discussions or the filing of materials by 22 January 2025.
Mr Dickson did not contact my Chambers on 22 January 2025.
At 10:01am on 23 January 2025 my Associate attempted to call Mr Dickson, but the call was not answered.
On 23 January 2025, my Chambers sent an email to Mr Dickson advising that the matter would be listed for a hearing regarding dismissing the application pursuant to s.587 of the FW Act at 11:30am on 30 January 2025.
On 24 January 2025, Mr Dickson sent the following email to my Chambers:
Good evening,
As discussed, I’ve had no response from Ultratune trading as AAA72 Pty Ltd.
I have followed all directions given by the commission, but cannot get a response from the other party?
Please issue new directions.
Kind regards
Contrary to Mr Dickson’s email, he did not comply with the Directions. In response to Mr Dickson’s email, my Chambers informed Mr Dickson that for his email to be considered, he must copy in the Respondent as required by paragraph 30 of the Fair Hearings Practice Note.
Mr Dickson did not respond to this email. The hearing regarding dismissing the application pursuant to s.587 of the FW Act proceeded as scheduled at 11:30am on Thursday, 30 January 2025.
Despite two attempts by my Chambers to call Mr Dickson at the time of the hearing on the phone number provided in the application, Mr Dickson did not respond to the phone call and did not appear at the hearing listed on 30 January 2025.
Section 587 of the FW Act provides as follows:
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 prospect 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.
The terms of s.587(1) make it clear that the circumstances that the Commission may dismiss an application are not limited to those set out in s.587(1)(a)-(c).
I am satisfied that the Commission has taken reasonable and appropriate steps to notify Mr Dickson of the filing deadlines, the scheduled hearing, and the consequences of failing to comply with the Directions. Mr Dickson was repeatedly reminded to submit materials, was given opportunities to provide updates on settlement discussions, and was warned that non-compliance could result in dismissal of the application under s.587 of the FW Act. Despite these efforts, Mr Dickson failed to file the required material, did not respond to multiple attempts by my Chambers to communicate with him, and did not appear at the dismissal hearing. I am satisfied that Mr Dickson has indicated by his inaction that he no longer wishes to pursue the application.
In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the FW Act. I order accordingly.
DEPUTY PRESIDENT
Appearances:
No appearance for Mr Dickson.
No appearance for the Respondent.
Hearing details:
2025
30 January
By Video using Microsoft Teams
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