Stephen Lightfoot v Tyre Time
[2022] FWC 33
•11 JANUARY 2022
| [2022] FWC 33 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephen Lightfoot
v
Tyre Time
(U2021/9661)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 11 JANUARY 2022 |
Application for an unfair dismissal remedy
Background
On 28 October 2021, Mr Stephen Lightfoot (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission). The Applicant claims he was unfairly dismissed by his employer, Tyre Time (Respondent) on 14 October 2021.
The matter was allocated to my Chambers on 19 November 2021. The matter was listed for mention/directions on 2 December 2021.
The Applicant attended the mention/directions before me on 2 December. The Respondent did not attend nor answer his phone when contacted by my Associate. I determined to proceed with the mention/directions, recorded, to ensure procedural fairness. The Applicant was advised of the process if he wished to proceed, as well as the possible outcomes, including the compensation available to him under the Act in his circumstances if he were to be successful. The Applicant indicated he would like some time to consider whether to proceed with his application or withdraw.
On 7 December 2021 the Applicant indicated by telephone to my Associate that he wished to proceed with the matter regardless of his likelihood of success, or the available compensation under the Act, as he wished there to be a written decision published against the Respondent. A notice of listing and directions were issued to the parties on the same day, with the matter listed for hearing to deal with the jurisdictional objections and the merits of the substantive case on 28 January 2022.
Order [3] of the directions issued 7 December 2021 read as follows:
“[3] By 4.00pm AEDT on Friday, 7 January 2022 the Applicant must file in the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in opposition to the jurisdictional objections raised, and any documents in support of the Applicant’s substantive application.”
Chambers received no correspondence from the Applicant in compliance with Order [3].
On 10 January 2022 the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with directions, and issuing further directions for the Applicant to:
“[1] … file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Today, 10 January 2021.
[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.”
The Applicant responded at 3:55 pm on 10 January with a short email that outlined the timeline of events regarding his dismissal. The email contained no explanation of his failure to comply with directions, and no outline of submissions, evidence or any other material to support his application. Indeed, the email contained reference to evidence that the Applicant purported to have to support his claim, but the Applicant did not file or serve this evidence nor make any explanation of the failure to file and serve the evidence to date.
Legislative Provisions
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.”
In Rebecca Tomas v Symbian Health[2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:
“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia's power to dismiss matters for other reasons.
[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”[1]
Consideration
The Applicant has made no attempt to comply with directions to file and serve submissions and evidence prosecuting his case. Taking into account the Applicant’s purported goals in continuing the proceedings, his failure to duly prosecute his case, and his non-compliance with directions issued 7 December 2021 and 10 January 2022, I find, pursuant to s.587(3)(a), that the application should be dismissed for want of prosecution. An Order dismissing the application will be published with this Decision.
DEPUTY PRESIDENT
[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].
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