Stuart McPhee v Ecolour Australia Pty Ltd

[2021] FWC 6633

[2021] FWC 6633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart McPhee
v
Ecolour Australia Pty Ltd
(U2020/14185)

COMMISSIONER BISSETT MELBOURNE, 20 DECEMBER 2021

Application for an unfair dismissal remedy

[1] Mr Stuart McPhee (the Applicant) made an application to the Fair Work Commission (Commission) for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). Mr McPhee alleged he was unfairly dismissed by Ecolour Australia Pty Ltd (the Respondent) on 7 October 2020.

[2] The matter was listed for conciliation before a staff conciliation on 16 November 2020 where it did not settle. The matter was subsequently allocated to Commissioner Booth (the Commissioner) for determination.

[3] Directions for the filing of materials and evidence and a hearing date were issued by the Commissioner on 26 November 2021.The matter was also listed for Mention and Conference before the Commissioner on 10 December 2020.

[4] While the contents the Conference were without prejudice and not recorded by the Commission, the Commission file indicates that on 18 January 2021 the Commissioner’s chambers confirmed in writing to the parties that the Directions issued had been vacated during the Conference on the basis that the parties were attempting to resolve the matter. That correspondence requested the parties keep the Commissioner informed of their progress.

[5] On 24 February 2021 the Commissioner’s chambers sought an update as to the status of the matte from the parties. On 3 March 2021 the Respondent’s representative replied advising that it had not received any substantive communication from the Applicant or his representative regarding the matter.

[6] On 19 April 2021 the Commissioner’s chambers contacted the parties by email seeking an update as to the status of the matter, as the application had been in abeyance for some time. Shortly thereafter, the Applicant’s representative replied stating they believed the parties had been in direct communication, and that they would report back as soon as they heard from their client.

[7] On 20 April 2021 the Respondent’s representative again advising that it had not received substantive communication from the Applicant’s representative, except the email of 19 April 2021. The Respondent’s representative advised that since the Conference before the Commissioner it had on three occasions written to the Applicant regarding the return of company property, to which only one reply was received.

[8] On 28 May 2021 the Commissioner’s chambers sought another update from the parties.

[9] The Respondent’s representative replied on 31 May 2021, again advising it had received no substantive communications from the Applicant nor his representatives.

[10] On 17 June 2021 the Commissioner’s chambers telephoned the Applicant’s representative. They were not available and a voicemail was left requesting they return the call.

[11] On 2 December 2021 the Commissioner’s chambers telephoned the Applicant’s representative. The Applicant’s representative advised that the Applicant was considering discontinuing his unfair dismissal application and planned to pursue unpaid entitlements separately. The representative requested time to seek instructions from the Applicant and endeavoured to provide an update by 3 December 2021 or early in the week commencing 6 December 2021.

[12] No update was provided and the matter was referred to me on 14 December 2021.

[13] On 14 December 2021 my chambers emailed Mr McPhee and his representatives in the following terms:

The application of Mr McPhee has been allocated to Commissioner Bissett, National Practice Leader for Unfair Dismissals at the Fair Work Commission.

The Commissioner is considering dismissing the application due to the applicant’s failure to respond to correspondence of the Commission.

You are directed to file submissions to [email protected] as to why the application should not be dismissed by 4.00 pm Friday 17 December 2021.

[14] No submissions or other contact were received.

[15] Section 587(1) of the FW Act provides that:

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 prospect of success.

[16] The Commission file has been left open for an exhaustive period. Following the vacating of Directions, the Applicant has been afforded generous time and opportunity to resolve his unfair dismissal application with the Respondent or to otherwise correspond with the Commission as to progressing his claim. The Respondent has clearly attempted to engage with the Applicant and his representatives but also to no avail.

[17] The Applicant appears to have disengaged with both the Commission and the Respondent without adequate explanation.

[18] In deciding whether to dismiss an application pursuant to s.587 of the FW Act the Commission is not limited to those matters in s.587(1)(a)-(c) – this much is clear from the opening words “Without limiting when the FWC may dismiss an application…” found in s.587(1). I am satisfied that the failure of the Applicant to respond to the Respondent and his failure to respond to correspondence from the Commission provides grounds for me to dismiss the application.

[19] For these reasons I have determined to dismiss the application pursuant to s.587(1) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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