Peter Monaghan v Nepean Regional Security Pty. Limited

[2024] FWC 2109

[2024] FWC 2109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Monaghan
v

Nepean Regional Security Pty. Limited

(U2024/1967)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 AUGUST 2024

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

1. On 22 February 2024, Mr Peter Monaghan (the Applicant) made an application to the Fair Work Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Monaghan named Nepean Regional Security Pty. Limited as the Respondent (the Respondent) to his application.

1. A conciliation conference before a staff conciliator of the Commission was listed for Thursday, 28 March 2024. The conference did not take place. On that same day, the Commission received notice from a relative of the Applicant that the Applicant had passed away.

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

1. On Monday, 6 May 2024, I listed the matter for a mention. Ms Gina Field attended for the Respondent. Mr Brian Monaghan, the Applicant’s brother, had previously confirmed his attendance. Whilst Mr Brian Monaghan did not attend, he later sent my Chambers an apology for his non-attendance. The mention proceeded in Mr Brian Monaghan’s absence and I advised Ms Field that the matter would be progressed via written correspondence.

1. On 21 May 2024, my Chambers sent correspondence to Mr Brian Monaghan and the Respondent’s preferred email address. This correspondence outlined the procedural history with respect to the matter and stated that it was my provisional view, having regard to previous decisions of the Commission, that Mr Monaghan’s application for an unfair dismissal remedy must be dismissed under s.587(1)(c) of the Act on the basis that it has no reasonable prospects of success. Mr Brian Monaghan and the relevant contact person for the Respondent were invited to provide their response to this correspondence and any further material for consideration by Friday, 7 June 2024.

1. In response to my correspondence, the Respondent submitted that it agreed with the provisional view I outlined. The Respondent enumerated several objections to the application proceeding in its submissions, including that there were disputed facts which would require the Commission to hear and consider evidence from both sides, which understandably, cannot be done in the circumstances.

1. In his submissions, Mr Brian Monaghan submitted material directed towards the merits of the Applicant’s claim. In the final of four emails to my Chambers, Mr Monaghan said: “I find the whole thing distressing after my brothers passing , just forget the whole thing . The ACT states that it can’t be continued then that’s it . [sic]”

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]

2. 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. I adopt this summary below, considering Deputy President Gostencnik’s observations in Stan:

• 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 had 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 Peter Monaghan’s death prevents any other person from pursuing or discontinuing the application. 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 under s.587(1)(c) of the Act. 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] PR778088.

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<PR778087>