Steven Geoffrey Fitzgerald v Compass Group Defence Hospitality Services Pty Ltd
[2022] FWC 1039
•5 MAY 2022
[2022] FWC 1039
The attached document replaces the document previously issued with the above code on 5 May 2022.
Paragraphs 1, 2, 3, 4, 5, 7, 9, 10, 11, 13, 14 have been amended.
Associate to Deputy President Boyce
Dated 11 May 2022
| [2022] FWC 1039 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Steven Geoffrey Fitzgerald
v
Compass Group Defence Hospitality Services Pty Ltd
(C2022/1697)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 5 MAY 2022 |
Application to deal with general protections contraventions involving dismissal
On 10 March 2022, Mr Steven Geoffrey Fitzgerald (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being a general protections application involving dismissal (Application). The Applicant commenced employment with Compass Group Defence Hospitality Services Pty Ltd (Respondent) on 13 October 2014, and was dismissed on 18 February 2022.
On 17 April 2022, a Form F50 – Notice of Discontinuance (First Discontinuance Notice), signed with the name of the Applicant, was filed in the Commission (it stated that the Applicant wholly discontinued his Application). Subsequently, the Commission’s file in the matter was closed.
On 21 April 2022, the Applicant telephoned the Commission and stated that he had not completed nor filed the First Discontinuance Notice. The Applicant alleged that the First Discontinuance Notice had been filed with the Commission by his roommate (after an argument).
The matter was allocated to my Chambers on 26 April 2022. On the same day, a notice of listing was issued to the parties listing the matter for Mention and/or Directions on 4 May 2022, and directing that the parties provide a complete list of the persons attending the listing, “including their names (with preferred prefix), positions and contact numbers (direct or mobile only), as soon as practicable and by no later than 4pm on Monday, 2 May 2022.”
Further, the notice of listing directed the parties to dial into the Mention/Directions 5 minutes prior to the scheduled start time, and provided a step-by-step guide on how to dial in.
Chambers’ received no correspondence from the Applicant in compliance with the notice of listing.
Additionally, on 3 May 2022, the Applicant’s representative filed another Form F50 – Notice of Discontinuance (Second Discontinuance Notice) indicating that the Applicant wished to wholly discontinue the matter. On the same day, my Associate responded accepting the “Form F50 ‘Notice of Withdrawal’ as notice of the Applicant’s intention to wholly withdraw the application” and noted that any and all future directions and the listing on the 4 May 2022 at 10:30am AEST are hereby vacated. The Applicant’s representative then replied (by email) to my Associate stating that they did “not have instructions to act in the matter and therefore seek leave to withdraw as legal rep and NOT to withdraw the whole proceedings.” Subsequently, my Associate informed the parties that the Mention and/or Directions on 4 May 2022 would proceed.
On 3 May 2022, the Applicant’s representative filed a Form F54 indicating that they ceased to act for the Applicant.
The Applicant failed to appear at the Mention and/or Directions on 4 May 2022. My Associate attempted to dial the Applicant into the proceeding, but the Applicant did not answer the mobile telephone he listed in his Application as his contact telephone number. A voicemail message was left on the Applicant’s mobile number requesting that the Applicant follow the instructions on the notice of listing and dial into the Mention and/or Directions as soon as possible. Nevertheless, the Applicant failed to appear.
Consequently, on 4 May 2022, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to appear at the Mention/Directions on Wednesday, 4 May 2022, and issuing further directions for the Applicant to:
“file with the Commission, and serve on the Respondent, written submissions regarding their failure to appear in the Mention/Directions before the Deputy President. 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, 4 May 2022.”
The Applicant was notified in the Show Cause Email that if the Applicant does not comply, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice to him.
Legislative Provisions
“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
As the Applicant has made no attempt to comply with directions, and has failed to attend the Mention/Directions listing, or otherwise explain his non-appearance at same, I have decided to dismiss his Application.
In accordance with the principle of a fair go all round to both employers and employees, I consider that the Applicant’s repeated non-compliance with directions has now reached the level that the Respondent’s case is prejudiced. Further, in taking into account fairness, justice, equity and good conscience, I consider that the Applicant has been provided with repeated opportunities to engage with these proceedings and prosecute his case, and/or contact the Commission to explain his non-compliance and non-attendance, but has instead (including by his silence) expressed a clear disinterest in process and procedure. I therefore 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
<PR741258>
[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].
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