Tayfun McMahon v Octeros Cabinets (Vic) Pty Ltd

[2022] FWC 3172

[2022] FWC 3172

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tayfun McMahon

v

Octeros Cabinets (Vic) Pty Ltd

(U2022/9322)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 NOVEMBER 2022

Application for unfair dismissal remedy – Applicant repeatedly failed to prosecute his case – application dismissed.

1. On 18 September 2022, Mr Tayfun McMahon made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The Respondent to Mr McMahon’s unfair dismissal application is Octeros Cabinets (Vic) Pty Ltd (the Respondent).

Failure to attend Telephone Conciliation

1. On 5 October 2022, a Notice of Listing was sent to the parties via email scheduling a telephone conciliation before a Commission staff member to take place on 31 October 2022 at 12.15pm. On the same day, an email was sent to Mr McMahon’s nominated email address attached to which was a letter explaining the conciliation process. The letter was headed with an alert “Action required We need to hear from you within 7 days” and went on to say:

“By Wednesday, 12 October 2022 please let us know what phone number you want us to call you on for the conciliation. You can tell us by email at [email protected] or call us on 1800 759 566.”

And later:

“If you don’t wish to take part in conciliation, please let us know by Wednesday, 12 October 2022. If we don’t hear from you by then, the conciliation will go ahead at 12:15 on Monday, 31 October 2022.”

1. A further reminder at the bottom of the letter stated:

“Remember by Wednesday, 12 October 2022:

· Tell us your phone number for conciliation

OR

· Tell us if you don’t wish to take part in conciliation.

Please email [email protected] or call us on 1800 759 566.”

1. The Notice of Listing also noted:

“Any requests for adjournment of this listing must be made in writing and be based on substantial grounds.

The parties should forward contact telephone numbers to [email protected] within 7 days of receipt of this notice.”

1. On 5 October 2022, an email addressed to Mr Scott Dwan, the contact person for the Respondent, was sent to the nominated email address as per the Form F2 – Unfair Dismissal Application (Form F2). Attached to the email was a copy of Mr McMahon’s unfair dismissal application and a letter addressed to Mr Dwan advising that the Commission had received an application for unfair dismissal remedy from Mr McMahon and requesting the Respondent file its Form F3 – Employer response to unfair dismissal application (Form F3) by 12 October 2022. The letter contained a hyperlink to the Form F3 and further instructions on how to file and serve the Form F3. The letter also confirmed the date and time of the telephone conciliation and requested that the Respondent confirm contact details for the purposes of the conciliation. The letter advised the telephone conciliation would proceed as scheduled unless the Respondent indicated its intention not to take part in conciliation by 12 October 2022.

1. The Commission’s records also indicate that on 26 October 2022 at approximately 2.25pm, a Commission staff member telephoned Mr McMahon and Mr McMahon confirmed his contact telephone number for the purposes of the telephone conciliation.

1. The telephone conciliation did not ultimately proceed on 31 October 2022 because neither Mr McMahon nor the Respondent were contactable at the appointed time. Neither party responded to follow-up correspondence from the Commission. The matter was then allocated to me.

Failure to attend Telephone Mention

1. On 7 November 2022, an email was sent from my Chambers to the parties at 5.21pm scheduling a mention to take place by telephone at 10.00am on 9 November 2022. Mr McMahon’s nominated email address and the Respondent contact, Mr Dwan’s, nominated email address was used. It was also communicated in the email that a Notice of Listing confirming the details of the mention would be issued, together with Directions setting out when the parties were required to file their material for the further conduct of the unfair dismissal application. The Notice of Listing and accompanying Directions were subsequently sent to the parties nominated email addresses, and the parties were requested to provide their telephone numbers in advance to ensure they could be contacted for the mention. Further, a text message was sent to the parties’ nominated telephone numbers advising that a Mention had been scheduled for 10.00am on 9 November 2022 and that the Commission had sent a Notice of Listing via email.

1. The mention took place before me on 9 November 2022 at 10.00am. Neither Mr McMahon nor Mr Dwan of the Respondent could be contacted, despite multiple attempts to call Mr McMahon on his mobile telephone number and the leaving of a voice message. Multiple attempts were also made to contact Mr Dwan on his mobile phone number and a landline number (which appeared to be disconnected). An attempt was made to call a further contact of the Respondent, Mr Brad Walker, on the mobile phone number and landline number listed in the Form F2, however both the mobile and landline numbers appeared to be disconnected.

Failure to comply file material in accordance with Directions

1. In accordance with the Directions, Mr McMahon was directed to file and serve his material by no later than 3.00pm on Monday, 21 November 2022. He failed to do so. Accordingly, an email was sent by my Chambers to Mr McMahon at 10.50am on Tuesday, 22 November 2022, seeking his advice as to when the Commission could expect to receive his material. He did not reply. As such, I determined to list the matter for a Non-compliance hearing by telephone on 28 November 2022 at 9:30am.

Failure to attend Non-Compliance Hearing

1. An email was sent from my Chambers to the parties’ nominated email addresses at 1:10pm on 25 November 2022. It outlined that as Mr McMahon had not complied with the Directions and had not indicated when the Commission could expect to receive his material, the matter was listed for a Non-compliance hearing by telephone on 28 November 2022 at 9:30am. A Notice of Listing was subsequently sent to the parties via email, and they were requested to provide their telephone numbers in advance to ensure they could be contacted for the Non-compliance hearing. Further, a text message was sent to the parties’ nominated mobile phone numbers advising that the matter had been listed for a non-compliance hearing at 9:30am on 28 November 2022 and a Notice of Listing had been sent to their nominated email addresses.

1. The Non-compliance hearing took place before me on 28 November 2022 at 9:30am. Mr McMahon could not be contacted, despite three attempts to call him on the mobile telephone number listed in his Form F2 and the leaving of a voice message. The Non-compliance hearing proceeded in Mr McMahon’s absence. Mr Dwan appeared for the Respondent and advised the company had gone into voluntary administration that morning.  Mr Dwan advised the administrator is Jirsch Sutherland Insolvency Solutions and he agreed to provide my Chambers with the contact details of the administrator so that my Chambers could engage with the administrator for the future conduct of the file. 

1. Immediately following the Non-compliance hearing, correspondence was sent from my Chambers to Mr McMahon’s nominated email address. It outlined that Mr McMahon had failed to respond to all recent attempts by the Commission to contact him and, had failed to attend the Mention on 9 November 2022 and the Non-compliance hearing on 28 November 2022. Mr McMahon was directed to file his material in accordance with the Directions by no later than 3.00pm on 30 November 2022 if he intended to proceed with his application. Mr McMahon was cautioned that in the absence of a response, his unfair dismissal application would likely be dismissed without further notice.

1. As at 3.00pm on 30 November 2022, Mr McMahon has not filed any material with the Commission.

1. The decision of the Full Bench of the Australia Industrial Relations Commission in Smith v Beck Pty Ltd (in liquidation)[1] remains authority for the proposition that when a company is in voluntary liquidation, a Member of the Commission retains discretion as to whether the matter should proceed for determination or be adjourned, in the circumstances of this application, I consider it is appropriate that I should proceed to make a determination in relation to Mr McMahon’s application.

1. Section 587(1) 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.

...

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Sections 587(1)(a), (b) and (c) do not limit the Commission’s power to dismiss matters for other reasons and s.587(3) of the Act provides that the Commission may dismiss an application on its own initiative. The Full Bench of the Commission in Sayer v Melsteel Pty Ltd[2] held that s.587(1) provides for the dismissal of a matter without examining the merits where the applicant has failed to prosecute their case.

1. Mr McMahon’s failure to attend the staff telephone conciliation, failure to attend the telephone mention, failure to comply with the Directions, failure to attend the Non-compliance hearing and his failure to respond to correspondence from my Chambers suggests that he is not at all interested in putting any material before the Commission. As such, in the absence of any meaningful participation from Mr McMahon, I am left to conclude that he does not wish to pursue his application.

1. As mentioned above, the Commission has at all times used the phone number and email address provided by Mr McMahon in its attempts to contact him. Mr McMahon has been wholly unresponsive since the file has been allocated to me. His only action since making the unfair dismissal application has been to confirm his contact telephone number for the purposes of the staff telephone conciliation. Mr McMahon has had numerous opportunities to engage with the Commission’s processes and prosecute his case. He has not taken these up. Mr McMahon has failed to actively prosecute his case and has provided no explanation to the Commission for either his continued failure to comply with the Directions or his failure to attend the staff telephone conciliation on 31 October 2022, the mention on 9 November 2022 and the Non-compliance hearing on 28 November 2022.

1. The Commission has not been made aware of any countervailing circumstances impacting on Mr McMahon’s capacity to prosecute his case or simply just respond to one of the numerous attempts to contact him. This decision outlines that he has had more than ample opportunity to do so.

1. It was Mr McMahon’s responsibility “to take the best advantage of the opportunity presented”[3] to present his case. He has elected not to do so. In Viavattene v Health Care Australia, it was stated by the Full Bench of the Commission:

“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” [4]

1. Section 587 of the Act vests in the Commission the discretion to dismiss an application on its own initiative. I am satisfied it is appropriate in the circumstances of this case to exercise my discretion and dismiss Mr McMahon’s application for want of prosecution. An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

[1] PR940508 [2022] AIRC 1424.

[2] [2011] FWAFB 7498 at [19].

[3] Viavattene v Health Care Australia [2013] FWCFB 2532 at [40].

[4] Ibid at [39].

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