Shaun Hughes v Chandler Macleod Summary

[2023] FWC 1350

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shaun Hughes
v

Chandler Macleod

(U2023/4165)

COMMISSIONER BISSETT

MELBOURNE, 13 JUNE 2023

Application for an unfair dismissal remedy

On 15 May 2023 Mr Shaun Hughes made an application to the Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking a remedy for unfair dismissal. Mr Hughes said he had been dismissed from his employment at Chandler MacLeod.

Mr Hughes’ employment was terminated on 17 April 2023 (based on the information provided by Mr Hughes in his application). His application was therefore filed with the Commission 28 days after the date of his dismissal and, therefore, 7 days outside the 21 day statutory time period within which an application is required to be made. For this reason, Mr Hughes was required to seek an extension of time within which to make his application.

The file was allocated to me to determine the extension of time question.

On 22 May 2023 I issued directions in which I required Mr Hughes to file with the Commission and serve on the Respondent any further submissions (in addition to that included in his application), witness statements and any other documentary evidence in relation to the request for an extension of time by 26 May 2023. Chandler MacLeod was invited to file any submissions and evidence on the matter by 2 June 2023.

The application was consequently listed for hearing on 13 June 2023.

Mr Hughes failed to file his material as directed by 26 May 2023. Mr Hughes was given an extension, on my initiative, to file his material as directed by 31 May 2023. He again failed to comply with this Direction. For this reason the application was listed for a non-compliance hearing on 2 June 2023.

While Mr Hughes did not confirm his attendance at the non-compliance hearing my associate nevertheless attempted to contact him at the scheduled time. Mr Hughes answered the phone but, on the Commissioner joining the hearing, hung up the phone. Further attempts to contact Mr Hughes at that time were not successful.
Given Mr Hughes’ non-attendance at the non-compliance hearing my chambers sent correspondence to Mr Hughes which set out the history of his failure to comply with direction and then said:
“Given your failure to engage with the Commission in any way after filing your application Commissioner Bissett is considering dismissing your application under s.587 of the Fair Work Act 2009 (FW Act) on the grounds that you have failed to prosecute your application and have given no indication you intend to engage in the process of having your application dealt with.
Before making a decision the Commissioner is willing to hear from you as to whether she should dismiss your application or not. Any submissions you wish to make must be filed with the Commission (chambers.bissett.c@fwc.gov.au) by 4.00pm Wednesday 7 June 2023.
If you wish to withdraw your application you can advise of this by return email.”
Mr Hughes has not responded to this correspondence.

Section 587 of the FW Act states:

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

It is apparent from the words ‘Without limiting when the Commission may dismiss an application…’ in s.587(1) that the Commission is not limited to dismissing an unfair dismissal application on the three grounds in s.587(1).

In this case Mr Hughes has failed to comply with the directions issued by the Commission or respond to correspondence from the Commission and, when given an opportunity to discuss the matter with the Commission, hung up the phone.

I am satisfied that it can be inferred, by his actions, that Mr Hughes has no intention of pursuing his application. For this reason and in the interests of finality of the matter I have determined, pursuant to s.587 of the FW Act, to dismiss his application.

An order[1] to his effect will be issued in conjunction with this decision.

COMMISSIONER

~~Printed by authority of the Commonwealth Government Printer~~

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[1] PR762910

Printed by authority of the Commonwealth Government Printer

The applicant, Shaun Hughes, sought an unfair dismissal remedy against Chandler Macleod pursuant to section 394 of the Fair Work Act 2009 (FW Act). His application was made outside the statutory 21-day period, requiring him to seek an extension of time. The Commission issued directions for both parties to file submissions and evidence regarding the request for an extension by specific dates. Mr Hughes failed to comply with these directions, leading to the application being listed for a non-compliance hearing, which he also did not attend. The Commission subsequently sent correspondence to Mr Hughes outlining his failure to comply and stating the potential dismissal of his application under section 587 of the FW Act for failing to prosecute his application.

The primary legal issue was whether Mr Hughes' application should be dismissed under section 587 of the FW Act due to his failure to comply with Commission directions, his lack of engagement with the proceedings, and his non-attendance at the scheduled non-compliance hearing. The Commission had to determine if Mr Hughes' actions indicated a lack of intention to pursue his application and whether dismissing the application was appropriate in the interests of finality. The Commission also had to consider the grounds under which it could dismiss the application, including the discretionary power to dismiss applications not limited to the specific grounds in section 587(1).

The Commission concluded that Mr Hughes' repeated failures to comply with directions, his lack of response to correspondence, and his action of hanging up the phone when contacted indicated he had no intention of pursuing his application. The Commission determined that dismissing the application was appropriate under section 587 of the FW Act as it was in the interests of finality and Mr Hughes had not demonstrated any intention to engage with the process. The Commission held that it was not limited to the specific grounds in section 587(1) and could dismiss the application on its own initiative. Consequently, the application was dismissed.

The Commission issued an order dismissing Mr Hughes' application for an unfair dismissal remedy. The order noted that the application was dismissed due to Mr Hughes' failure to comply with Commission directions and his lack of engagement with the proceedings, which indicated no intention to pursue his application. The dismissal was made in the interests of finality, and Mr Hughes was given the opportunity to respond but failed to do so.

Shaun Hughes v Chandler Macleod

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established