Sean Christopher Mark Sherlock v MDG Contracting Group Pty Limited

[2024] FWC 2425

[2024] FWC 2425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sean Christopher Mark Sherlock
v

MDG Contracting Group Pty Limited

(C2023/6378)

Brenton Gregory Richardson
v

MDG Contracting Group Pty Limited

(C2023/6469)

COMMISSIONER TRAN MELBOURNE, 5 SEPTEMBER 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – respondent in liquidation – s 587 – application dismissed

1. This is a decision to dismiss the above applications under s 587 of the Fair Work Act 2009 (the Act). The Commission can dismiss an application on its own initiative under s 587 of the Act if an application is not made in accordance with the Act, it is frivolous or vexatious or if it has no reasonable prospects of success. But these grounds do not limit the Commission’s power to dismiss an application, and the Commission can also dismiss an application where:

“an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative.”[1]

1. I am satisfied that the applicants have demonstrated that they do not intend to prosecute their applications.

Background

1. Both applicants applied for the Commission to deal with a dismissal dispute under s 365 of the Act, saying that MDG Contracting Group Pty Limited (MDG) had dismissed them in breach of the general protections’ provisions. While separate applications, both were in similar form and recited similar facts. For their part, MDG objected to the applications and said that it had not dismissed the applicants. MDG said that it had made other employees redundant but wished to retain the 2 applicants.

1. For efficiency, I determined to deal with the matters together. The parties agreed to this approach at a case management conference held on 29 November 2023.

1. In matters under s 365 where a respondent has raised the jurisdictional objection that it did not dismiss an applicant, the decision of the Federal Court in Coles v Milford[2] means that the Commission must first find as a jurisdictional fact that a dismissal has occurred.

1. However, in January 2024, it came to the Commission’s attention that the respondent was placed into liquidation.

1. I then informed the parties that s 500(2) of the Corporations Act 2001[3] precludes the proceeding from continuing without leave of a Court. I adjourned the matter, on the applicants’ request, to provide them with an opportunity to seek that leave.

1. On 13 March 2024, the applicants’ representative informed me that they had made applications under the Fair Entitlements Guarantee Scheme but did not indicate whether they had sought the court’s leave.

1. On 2 July 2024, I again wrote to the applicants to ask whether they had sought the court’s leave. I also indicated that if they had not commenced proceedings, they need to indicate whether they intended to do so and when such an application would be commenced. I further indicated that if the applicants did not intend to seek leave of the court, they must either discontinue the matters or provide submissions on why the Commission should continue to adjourn the matter indefinitely. I received an auto-reply indicating that the representative was on a period of leave of “6 to 7 weeks” but it was not clear from which date that leave commenced. I did not otherwise receive any reply.

1. On 25 July 2024, I again wrote to the applicants to ask whether they had sought the court’s leave. In that correspondence, I indicated that the applications may be dismissed if I did not hear from the applicants by 20 August 2024. I did not receive a reply.

Failure to prosecute

1. The applicants’ representative has not filed a Form F54 indicating that he has ceased to act, and has failed to respond to the Commission on 2 separate occasions. He has not indicated any attempt to seek the court’s leave to allow this matter to continue.

1. I am therefore satisfied that the applicants have demonstrated that they are no longer willing to participate in or prosecute their own case.

Order

1. For the above reasons, I order that the following applications are dismissed under s 587 of the Act:

· The application under s 365 in matter C2023/6378 filed by Mr Sean Sherlock on 18 October 2023;

· The application under s 365 in matter C2023/6469 filed by Mr Brenton Richardson on 19 October 2023.

COMMISSIONER

[1] Viavattene v Health Care Australia[2013] FWCFB 2532 at [39].

[2] Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68].

[3] See Trethewey v Total Work Solutions[2020] FWC 156.

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