Ryan Petersen v SRSC Payroll Services Pty Ltd

[2024] FWC 1389

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ryan Petersen
v

SRSC Payroll Services Pty Ltd

(U2024/3481)

COMMISSIONER HUNT

BRISBANE, 28 MAY 2024

Application for an unfair dismissal remedy

On 26 March 2024, Mr Ryan Petersen made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with SRSC Payroll Services Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.

The matter was listed for a staff conciliation on 7 May 2024. The conciliation could not proceed as Mr Petersen did not join the online conciliation conference and could not be contacted by telephone. Mr Petersen did not provide any explanation for his non-attendance at the conciliation.

The matter was allocated to me on 14 May 2024. The same day, I issued directions requiring the parties to file material by certain dates and notified the parties of a telephone conference to be convened on 21 May 2024. Mr Petersen did not attend the telephone conference on 21 May 2024, despite numerous attempts by my Associate to contact him. Accordingly, on 22 May 2024, I informed the parties the matter would be listed for a Non-Compliance Hearing on 24 May 2024.

Mr Petersen did not attend the Non-Compliance Hearing. The Hearing was therefore abandoned, and I issued correspondence informing the parties that if Mr Petersen did not provide a suitable explanation for his non-attendance at Commission proceedings, I may consider dismissing his application under s.587 of the Act.

Section 587 of the Act 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.

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 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.”

After considering the numerous attempts to engage Mr Petersen in his application to the Commission, including his failure to attend the conciliation, preliminary conference and Non-Compliance Hearing without a reasonable explanation, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to s.587(3)(a) of the Act. Mr Petersen has demonstrated an unwillingness to prosecute his own application and consequently I find that the application has no reasonable prospects of success.

An Order to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Ryan Petersen v SRSC Payroll Services Pty Ltd, Mr Petersen applied to the Fair Work Commission under the Fair Work Act 2009, alleging unfair dismissal. The matter was initially listed for a staff conciliation, but Mr Petersen did not attend. Subsequent attempts to engage with him, including a preliminary conference and a Non-Compliance Hearing, also failed as Mr Petersen did not participate or provide any explanation for his absence. The Commissioner, having made multiple attempts to involve Mr Petersen in the proceedings, decided to dismiss the application based on his failure to engage with the Commission.

The primary legal issue before the Commissioner was whether Mr Petersen's application could be dismissed under section 587(1)(c) of the Fair Work Act 2009, which allows the Commission to dismiss an application if it has no reasonable prospects of success. Given Mr Petersen's repeated non-attendance and lack of engagement with the proceedings, the Commissioner concluded that the application was unlikely to succeed due to his failure to participate. The Commissioner considered that Mr Petersen's unwillingness to prosecute his application demonstrated that it had no reasonable prospects of success.

Based on the evidence of Mr Petersen's non-participation and lack of engagement, the Commissioner dismissed the application under section 587(1)(c) of the Act. The decision was made at the Commission’s initiative, as Mr Petersen had not provided any reasonable explanation for his non-attendance at the various Commission proceedings. The Commissioner found that Mr Petersen's actions indicated a lack of intent to pursue his application, thereby rendering it futile to continue with the proceedings. Consequently, the application was dismissed.

An order dismissing Mr Petersen's application for unfair dismissal was issued. The Fair Work Commission determined that the application had no reasonable prospects of success due to Mr Petersen's failure to participate in the proceedings, and thus dismissed the application under section 587(1)(c) of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established