Scott McDonald v Furphy’s Foundry Sales Pty Ltd
[2024] FWC 857
•4 APRIL 2024
| [2024] FWC 857 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott McDonald
v
Furphy’s Foundry Sales Pty Ltd
(U2023/13065)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 4 APRIL 2024 |
Application for an unfair dismissal remedy – application dismissed pursuant to s 587
On 23 December 2023, Mr McDonald made an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Mr McDonald alleges that he was unfairly dismissed by the respondent, Furphy’s Foundry Sales Pty Ltd.
For the reasons that follow, Mr McDonald’s application for an unfair dismissal remedy is dismissed pursuant to s 587 of the Act.
Procedural context
Directions were issued by the Commission on 20 February 2024, including a requirement that Mr McDonald file submissions in support of his application for an unfair dismissal remedy by no later than 4:00 pm on 5 March 2024.
On 21 February 2024, the Commission wrote to Mr McDonald directing that he advise whether he continued to be represented by the paid agent nominated in his Form F2 application, Employee Dismissals. Mr McDonald’s response was required by no later than 4:00 pm on 22 February 2024.
The Commission did not receive a response from Mr McDonald in respect this matter on 22 February 2024 as directed. Nor did Mr McDonald file submissions in support of his unfair dismissal application by the 5 March 2024 compliance deadline. Accordingly, the matter was listed for Mention on 14 March 2024.
On 13 March 2024, the day prior to the Mention, the Commission received correspondence from Employee Dismissals. The paid agent advised that it acted for Mr McDonald and would seek the permission of the Commission to appear for him at the Mention.
During the Mention, an application was made by the respondent pursuant to s 399A of the Act. Neither Mr McDonald nor his paid agent made any oral submissions in response to the s 399A application.
On 14 March 2024, following the Mention, the Commission sent correspondence to parties that referred to the s 399A application that had been made by the respondent and issued the following directions:
Deputy President Millhouse directs as follows:
1.By no later than 4:00 pm Monday 18 March 2024, the applicant is to file with the Commission and serve on the respondent an explanation and supporting evidence as to why the Commission should not dismiss the unfair dismissal application in light of the applicant’s failure to:
(a)advise the Commission as to whether he continued to be represented by Employee Dismissals and
(b)comply with a direction of the Commission in relation to filing of material.
2.By no later than 4:00 pm Wednesday 20 March 2024, the respondent is to file with the Commission and serve on the applicant any materials in reply.
If the applicant fails to provide a response to the s 399A Application, the Deputy President may proceed to determine the s 399A Application on the material before the Commission. This may result in the dismissal of the applicant’s claim for an unfair dismissal remedy.
The parties are advised that the Directions of Deputy President Millhouse as issued on 20 February 2024 are vacated to allow the finalisation of the s 399A application.
On 18 March 2024, Employee Dismissals advised the Commission it no longer acts for Mr McDonald.
On 19 March 2024, the Commission sent correspondence to the parties in which it was noted that Mr McDonald had not filed any material on 18 March 2024 in accordance with the
14 March 2024 directions. The correspondence relevantly stated as follows:
Chambers confirms receipt of the attached Form F54 advising that the applicant’s representative no longer acts for Mr McDonald. The attached Form F54 was filed with the Commission yesterday.
The Deputy President observes that on the same date, 18 March 2024, Mr McDonald was required to file in the Commission and serve upon the respondent submissions and supporting material explaining why the Commission should not dismiss his unfair dismissal application (see direction 1 below in the Commission’s email of 14 March 2024).
No material has been filed by Mr McDonald in accordance with the directions.
In circumstances where Mr McDonald has failed to comply with the Commission’s 14 March 2024 directions, the Deputy President is considering the respondent’s s 399A Application alongside the provisions of s 587 of the Fair Work Act 2009 (Cth). Section 587 provides for the dismissal of an application before the Commission including on the basis that it has no reasonable prospects of success:
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.
The Deputy President has not formed any concluded views in relation to these matters. In the circumstances, the Deputy President considers it appropriate to issue further directions.
Further directions
Deputy President Millhouse directs as follows:
1. By no later than 4:00pm tomorrow Wednesday 20 March 2024, Mr McDonald is to:
A.File with the Commission and serve on the respondent an explanation and supporting evidence for:
(a) his failure to advise the Commission as to whether he continued to be represented by Employee Dismissals; and
(b) his failure to comply with a direction of the Commission in relation to filing of material in support of his unfair dismissal application.
B.File with the Commission and serve on the respondent any responsive views addressing whether his application for an unfair dismissal remedy be considered for dismissal pursuant to s 587 of the Act on the basis that it has no reasonable prospects of success in the absence of any material being filed by Mr McDonald in support of it.
2. By no later than 4:00pm Thursday 21 March 2024, the respondent may file any material in reply (noting that the requirement upon the respondent at (2) of the 14 March 2024 directions is vacated).
The further directions provided Mr McDonald with an additional opportunity to address the s 399A application as well as file any responsive views addressing whether his application for an unfair dismissal remedy be considered for dismissal pursuant to s 587 of the Act. The correspondence then stated:
What happens next?
If Mr McDonald fails to provide a response to the above further directions, the Deputy President may proceed to consider the s 399A Application made by the respondent, and/or the application of s 587 of the Act, based on the material before the Commission. This may result in the dismissal of Mr McDonald’s claim for an unfair dismissal remedy.
Mr McDonald did not file submissions by the extended compliance deadline of 20 March 2024, or at all.
Consideration
Section 587 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.
….
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
I consider that Mr McDonald’s failure to file any material in support of his unfair dismissal application pursuant to the Commission’s 20 February 2024 directions demonstrates an unwillingness by Mr McDonald to prosecute his application for an unfair dismissal remedy. A facility has been provided to Mr McDonald pursuant to the 14 March and 19 March 2024 directions to provide an explanation for his non-compliance. Mr McDonald has not engaged in this process. In these circumstances, I am satisfied that Mr McDonald has failed to comply with the 20 February, 14 March and 19 March 2024 directions of the Commission.
The Commission is required, by s 577 of the Act, 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 587(1) of the Act provides the Commission with power to dismiss an application on its own initiative. I consider that the term “[w]ithout limiting when FWC may dismiss an application” in sub-clause (1) demonstrates that the grounds upon which the Commission may dismiss an application are not limited. I am satisfied that the power to dismiss an application can extend to circumstances where an applicant has failed to prosecute their own case, including by non-compliance with directions of the Commission and a repeated failure to provide an explanation for that non-compliance, as is the case here.
Having regard to these matters, and the conclusions reached, I am empowered to exercise the discretion afforded pursuant to s 587(1) of the Act to dismiss Mr McDonald’s application for an unfair dismissal remedy. While such discretion is to be exercised with caution, I am satisfied it should be exercised in circumstances where Mr McDonald has not demonstrated a willingness to prosecute his case, and noting the following:
(a)Mr McDonald did not comply with the direction to advise the Commission whether he was represented by a paid agent by 22 February 2024 as directed.
(b)Mr McDonald did not comply with the direction to file materials in respect of his unfair dismissal application by 5 March 2024.
(c)Mr McDonald did not comply with the direction to file submissions in response to the respondent’s s 399A application by 18 March 2024.
(d)Mr McDonald did not comply with the direction to file submissions addressing whether his application should be considered for dismissal pursuant to s 587 of the Act by 20 March 2024.
(e)The Commission has afforded Mr McDonald an adequate opportunity to provide an explanation for his non-compliance or otherwise engage with the Commission about his unfair dismissal application.
(f)Mr McDonald has been on notice of the consequences of his non-compliance since 14 March 2024.
There are no matters which weigh against the exercise of my discretion.
I therefore exercise my discretion to dismiss Mr McDonald’s unfair dismissal application under s 587 of the Act for want of prosecution or alternatively, on the basis that such application has no reasonable prospects of success in the absence of any material being filed by Mr McDonald in support of it.
It follows that I do not consider it necessary to consider the respondent’s s 399A application.
Order and disposition
For the reasons given, Mr McDonald’s application for an unfair dismissal remedy is dismissed pursuant to s 587 of the Act.
DEPUTY PRESIDENT
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