Stephen Wilson v Nightglo Transport & Logistics
[2022] FWC 1637
•28 JUNE 2022
| [2022] FWC 1637 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephen Wilson
v
Nightglo Transport & Logistics
(U2022/5504)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 28 JUNE 2022 |
Application for an unfair dismissal remedy
On 18 May 2022 Mr Stephen Wilson (the applicant or Mr Wilson) made an application to the Commission under s 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed by his employer Nightglo Transport & Logistics (the respondent or Nightglo).
The matter was listed for a directions hearing by audioconference at 2:15pm (ACST) on Tuesday 21 June 2022. Dial-in details were provided. The Notice of Listing was sent to the parties’ email addresses previously notified (and from which Mr Wilson had communicated with the Commission on 18 May 2022).
Mr Wilson did not join the directions hearing at 2:15pm (ACST) on Tuesday 21 June. My Associate made several telephone calls to Mr Wilson but the calls were not answered. After several missed calls, Mr Wilson answered and informed my Associate that he wished to discontinue the matter as he had been paid sums due by Nightglo that morning. My Associate informed Mr Wilson that she would telephone him back after speaking with me.
A short time after, my Associate telephoned Mr Wilson once again and informed him that he should join the directions hearing, even if he wished to discontinue the matter. My Associate explained to Mr Wilson that she would call him back to join him directly to the directions hearing conducted by audioconference.
My Associate attempted to join Mr Wilson to the directions hearing several times, but the calls were not answered. Mr Wilson’s mobile appeared to be switched off.
At 2:34pm (ACST) I commenced the directions hearing. The respondent was in attendance. There was no appearance by Mr Wilson.
An audio record of the directions hearing was made. I advised the hearing that my chambers would endeavour to formalise what Mr Wilson’s intentions were in respect of his unfair dismissal application through communicating with him in writing.
That afternoon at 3:44pm (ACST), in light of the non-appearance by Mr Wilson at the directions hearing earlier that day, my Associate sent an email to Mr Wilson, copying the respondent:
“Dear Mr Wilson
Deputy President Anderson of the Fair Work Commission conducted a brief directions hearing on your unfair dismissal application in your absence this afternoon, attended by Mr Blamey of Nightglo Transport & Logistics.
You were provided an opportunity to attend but did not do so.
Prior to the directions hearing you advised me, the Deputy President’s Associate, that you had been paid monies you believed were owed by Nightglo, and that you want to discontinue your unfair dismissal application.
As you did not attend the directions hearing, the Deputy President could not process the discontinuance of your application.
In these circumstances, if you intend to discontinue your unfair dismissal application you will need to advise the Commission of this in writing. You can do this in one of two ways. Either you can simply send a reply email to this email confirming that your application is discontinued. Alternatively, you can complete the official Notice of Discontinuance form (attached) and send it back to the Commission by return email. Either way make sure you copy in Mr Blamey of the employer.
The Deputy President directs you to confirm your intention by no later than close of business (5.00pm) tomorrow 22 June 2022.
If you have not done so by then, the Deputy President will re-list your application for further directions.” (emphasis in original)
On Thursday 23 June 2022 at 12:49pm (ACST) I issued the following directions:
“I direct Mr Wilson to either notify the Commission in writing of the discontinuance of his action (U2022/5504) or alternatively notify his intention to proceed by no later than close of business (5.00pm ACDT) Friday 24 June 2022.
Compliance with the direction is mandatory. In the event that the direction is not complied with, the Commission may of its own motion summarily dismiss or otherwise deal with Mr Wilson’s application in his absence.”
That afternoon, at 3:36pm (ACST), I issued further directions as follows:
“[1] On 21 June 2022 the Commission conducted a directions hearing on the unfair dismissal application by Mr Wilson.
[2] Following the directions hearing the Associate to Deputy President Anderson sent an email to Mr Wilson in the following terms:
“Dear Mr Wilson
Deputy President Anderson of the Fair Work Commission conducted a brief directions hearing on your unfair dismissal application in your absence this afternoon, attended by Mr Blamey of Nightglo Transport & Logistics.
You were provided an opportunity to attend but did not do so.
Prior to the directions hearing you advised me, the Deputy President’s Associate, that you had been paid monies you believed were owed by Nightglo, and that you want to discontinue your unfair dismissal application.
As you did not attend the directions hearing, the Deputy President could not process the discontinuance of your application.
In these circumstances, if you intend to discontinue your unfair dismissal application you will need to advise the Commission of this in writing. You can do this in one of two ways. Either you can simply send a reply email to this email confirming that your application is discontinued. Alternatively, you can complete the official Notice of Discontinuance form (attached) and send it back to the Commission by return email. Either way make sure you copy in Mr Blamey of the employer.”
The Deputy President directs you to confirm your intention by no later than close of business (5.00pm) tomorrow 22 June 2022.
If you have not done so by then, the Deputy President will re-list your application for further directions.”
[3] Mr Wilson did not confirm his intention with the Commission, as had been directed.
[4] Accordingly, the Commission issues the following further direction.
[5] The FAIR WORK COMMISSION DIRECTS Stephen Wilson to notify the Commission in writing of the discontinuance of his action, or alternatively notify his intention to proceed, by no later than 5:00pm ACST, Friday 24 June 2022.
[6] Compliance with directions is mandatory.
[7] In the event that this further direction is not complied with, the Commission may of its own motion summarily dismiss or otherwise deal with Mr Wilson’s application in his absence and without further notice.
[8] Any enquiries in relation to these directions should be addressed to my office on telephone 08 8193 5511 or email at [email protected].”
(emphasis in original)
No materials or explanations were filed by Mr Wilson by Friday 24 June 2022, or at all, as directed.
Section 587 of the FW 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.”
I am not satisfied that Mr Wilson is prosecuting his application in a manner consistent with the obligations of an applicant to the Commission. This includes his failure to comply with directions of the Commission and participate in scheduled hearings. I take into account that Mr Wilson may have a hearing disability. It is for this reason I provided Mr Wilson the opportunity to discontinue or advise of his intentions by email rather than in conference. This he has not done.
I am also satisfied that Mr Wilson has had due notice of proceedings and has been provided sufficient forewarning that the Commission may exercise power of its own motion under s 587 of the FW Act to dismiss applications that are not being actively prosecuted.
Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. As such, the application is dismissed pursuant to s 587(1)(c) of the FW Act. An Order to this effect will be issued.
DEPUTY PRESIDENT
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