Tyson Parsons v PMG Management Pty Ltd Summary

[2024] FWC 1028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tyson Parsons
v

PMG Management Pty Ltd

(U2024/1594)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 APRIL 2024

Application for an unfair dismissal remedy

Mr Tyson Parsons (the Applicant) was employed by PMG Management Pty Ltd (the Respondent) until he was dismissed on 2 February 2024. On 14 February 2024, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The Respondent raised the jurisdictional objection that the Applicant was hired and worked as a casual employee and therefore did not meet the minimum employment period. Periods of service as a casual employee do not count towards the minimum employment period unless the casual employee was employed on a regular and systematic basis and had a reasonable expectation of ongoing employment on a regular and systematic basis.

On 21 March 2024, correspondence was sent to the Applicant in relation to the jurisdictional objection and he was required to respond by 28 April 2024. No response was received at this time.
Further correspondence was sent to the Applicant on 3 April 2024 and he was required to respond by 5:00pm on 8 April 2024. It was in this correspondence that the Applicant was advised the application may be dismissed without any notice if no response was received.

On 9 April 2024 the Commission attempted to contact the Applicant via telephone. However, the Applicant could not be reached. A voicemail message was left advising the Applicant to respond to the correspondence as soon as possible. The voicemail also warned that if he did not contact the Commission by 16 April 2024, the application would be dismissed without further notice. On the same day, my Chambers received a missed call from the Applicant’s nominated telephone number however no voicemail was left.

On 17 April 2024 the Commission attempted to contact the Applicant via telephone again. However, the Applicant could not be reached. A voicemail message was left advising the Applicant to respond to the correspondence as soon as possible. The voicemail also warned that if he did not contact the Commission by the end of the day, the application would be dismissed without further notice.

To date, the Applicant has not responded to any of the correspondence from my Chambers.

Section 587 of the Act provides:

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Tyson Parsons v PMG Management Pty Ltd, the applicant, Tyson Parsons, applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. Parsons was employed by PMG Management Pty Ltd until his dismissal on 2 February 2024. PMG Management Pty Ltd raised a jurisdictional objection, claiming that Parsons was a casual employee and thus did not meet the minimum employment period required for an unfair dismissal claim. The Respondent argued that Parsons' periods of service as a casual employee did not count towards the minimum employment period unless he was employed on a regular and systematic basis with a reasonable expectation of ongoing employment. Parsons was required to respond to correspondence from the Commission regarding the objection but failed to do so, leading to the Commission's decision to dismiss the application.

The legal issues that the Commission had to decide involved the interpretation and application of section 587 of the Fair Work Act 2009, which provides the circumstances under which the Fair Work Commission (FWC) may dismiss an application. Specifically, the Commission had to determine whether Parsons' failure to respond to correspondence and attempts to contact him warranted the dismissal of his application. The Commission also had to consider whether Parsons' employment as a casual employee qualified him to make an unfair dismissal claim under the Act. The Respondent's objection centred on whether Parsons' casual employment status met the statutory criteria for an unfair dismissal claim.

The Commission, in deciding to dismiss the application, relied on section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative. The Commission noted that Parsons had failed to respond to multiple correspondences and attempts to contact him, despite warnings that his application would be dismissed without further notice if he did not engage. The Commission concluded that Parsons' failure to respond constituted a lack of prosecution, warranting the dismissal of his application. Additionally, the Commission found that Parsons' status as a casual employee did not meet the statutory criteria for an unfair dismissal claim, further supporting the dismissal of the application.

In conclusion, the Commission dismissed Tyson Parsons' application for unfair dismissal on the grounds of want of prosecution and the jurisdictional objection raised by PMG Management Pty Ltd. The Commission's decision was based on Parsons' failure to respond to correspondence and attempts to contact him, as well as the Respondent's argument that Parsons' casual employment status did not qualify him for an unfair dismissal claim. An order to that effect will issue with this decision.

Tyson Parsons v PMG Management Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established