Reece Rowe v Horizon Manufacturing Pty Ltd

[2021] FWC 5270

[2021] FWC 5270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Reece Rowe
v
Horizon Manufacturing Pty Ltd
(U2021/5686)

DEPUTY PRESIDENT LAKE BRISBANE, 25 AUGUST 2021

Applicant for an unfair dismissal remedy – application dismissed after applicant failed to attend and comply with directions

[1] This decision concerns an application made by Mr Reece Rowe (theApplicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (theAct) arising out of the termination of his employment with Horizon Manufacturing Pty Ltd (theRespondent).

[2] The Applicant lodged their Form F2 Unfair Dismissal Application on 29 June 2021. A Form F3 Employer Response was filed by the Respondent on 6 July 2021. The matter was allocated to my Chambers for hearing and determination.

[3] On 5 August 2021, my Chambers issued a notice of listing, accompanied by several directions. That notice of listing indicated at the conference for the matter would take place at 2pm on 5 August 2021. At the prescribed time, my Associate called Applicant three time on his mobile and left two messages. Meanwhile, the Respondent was able to contacted. By 3:27pm that afternoon, no response having been received from the Applicant, the following email was sent:

“Dear parties,

Reference is made to the above matter and the conference as listed before Deputy President Lake at Brisbane this afternoon at 2pm. The notice of listing for this in person conference was issued on 5 August 2021, including to the Applicant’s email address at [redacted].

The Applicant was called three times on his mobile and two messages were left, however at the time of sending this email no response has been received. The Respondent was contacted by the Commission for this conference and was available.

In light of the Applicant’s failure to attend the conference this afternoon, without notice of his inability to attend or any contact seeking an adjournment, the Deputy President must now turn his mind to whether the application should be dismissed for any failure of the Applicant to prosecute the matter.

Directions to the Applicant

The Applicant is directed to provide a written explanation as to the circumstances around his failure to attend at today’s conference, and submissions as to why the matter should not be dismissed in writing to Chambers and copied to the Respondent, by Monday, 16 August 2021.

Directions to the Respondent

The Respondent is invited to provide any response to the Applicant’s request for the matter to proceed by hearing, in writing to Chambers and copied to the Applicant, by Thursday, 19 August 2021.

The Deputy President will then determine the matter of whether the application should be dismissed, or proceed to hearing as listed.

If the Applicant fails to file these submissions as directed, the application may be dismissed and it will be a matter for the Respondent whether it seeks an order for costs against the Applicant.”

[4] At the time of writing this decision, no correspondence or communication has been received from the Applicant. The Applicant has also failed to comply with the directions requiring that he provide any material upon which he sought to rely in support of his application by Friday, 20 August 2021.

[5] The Respondent did not provide a further response, though at the conference had indicated that if no response was received by the Applicant, the matter should be dismissed.

[6] I am satisfied that the Applicant has been given sufficient time and numerous opportunities to make contact. 1 I have concluded that in circumstances, the Applicant failed to comply with my reasonable direction and therefore, has failed to prosecute their claim. No correspondence with Chambers has been received since the filing of the Application. As indicated in Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run, a failure to provide material could render an application with no reasonable prospect of success.2 However, if that alone is insufficient, it is clear that ‘the introductory words in s.587(1) indicate, the circumstances in which the Fair Work [Commission] may dismiss an application are not limited to those matters in s.587 of the Act.’3

[7] I am satisfied that Chambers has taken appropriate steps to inform the Applicant of the consequences of failing to provide the relevant documentation. I am also satisfied that sufficient time and warning was given to comply. I find it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant’s unfair dismissal application pursuant to s 587.

[8] Accordingly, I order that the Application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733186>

 1   As per Richard Carter v The Hanna Group Pty Ltd[2011] FWA 31, [6](DP Sams).

 2   Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[2011] FWA 4812.

 3   Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[2011] FWA 4812, [11] (DP Bartel).