Tyson Richards v Pascon Pty Ltd
[2023] FWC 3475
•22 DECEMBER 2023
| [2023] FWC 3475 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Tyson Richards
v
Pascon Pty Ltd
(U2023/10420)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 22 DECEMBER 2023 |
Application for an unfair dismissal remedy – non-compliant applicant – s 587 motion to dismiss – application dismissed
These are published reasons for a decision delivered ex tempore on 22 December 2023.
On 24 October 2023 Mr Tyson Richards (Mr Richards or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against his former employer Pascon Pty Ltd (Pascon or the respondent).
At the time of making the application Mr Richards was represented by Employee Dismissals.
Pascon opposed the application.
Background
The matter was listed for conciliation before a Commission staff member on 23 November 2023. The parties attended. The matter did not resolve.
The matter was then allocated to me.
On 14 December 2023 I conducted a directions hearing.
Pascon and Mr Richards’s representative (Employee Dismissals) attended. Mr Richards did not. Employee Dismissals had no current instructions from Mr Richards as it had not been able to make contact with him. The directions hearing was unable to proceed further. It was adjourned to 22 December 2023.
I issued the following directions on 14 December 2023:
“NOTING THAT:
· Tyson Richards (the applicant) failed, without explanation, to personally attend with his representative at the directions hearing which had been scheduled before me on 14 December 2023; and
· The applicant’s representative advised the hearing that she had in recent times been unable to contact the applicant:
THE COMMISSION DIRECTS as follows:
[1] This matter is listed for resumed Directions Hearing before Deputy President Anderson at 9:15am (ACDT) on Friday 22 December 2023 by telephone. A Notice of Listing is attached.
[2] The applicant is DIRECTED to attend the resumed Directions Hearing personally by telephone per the details contained in the Notice of Listing.
[3] The applicant is DIRECTED to provide further instructions to his representative as to whether he intends to proceed with this application by close of business (5.00pm ACDT) on Thursday 21 December 2023.
[4] The applicant is DIRECTED to provide a written explanation to the Commission (copied to the respondent) of his reason for non-attendance at the 14 December 2023 directions hearing by close of business (5.00pm ACDT) on Thursday 21 December 2023.
[5] If the applicant wishes to discontinue his application in advance of the resumed directions hearing on 22 December 2023, he may do so by written notice to the Commission, in which case the obligations under these directions will cease to apply.
[6] Non-compliance with these directions may disadvantage the applicant. The applicant is advised that should the applicant not respond to these directions as required, or not prosecute his application in a manner considered by the Commission to meet the minimum necessary obligations of a litigant, the Commission may on the employer’s application (s 399A) or of its own motion (s 587) further consider whether the application should be summarily dismissed without any further proceedings or notice and make a decision on that question.
[7] I grant both parties liberty to apply should further or amended directions be sought, consistent with the efficient conduct of proceedings.” (emphasis in original)
These Directions were sent to Mr Richards to his last advised email address, as well as to his representative. The representative also sent the Directions to Mr Richards.
Mr Richards failed to provide a written explanation to the Commission (copied to the respondent) of his reason for non-attendance at the 14 December 2023 directions hearing, contrary to Direction [4] above.
At 9.15am on 22 December 2023 I conducted the re-scheduled directions hearing.
Mr Richards failed to personally attend the hearing on 22 December 2023, contrary to Direction [2] above. Employee Dismissals attended, as did the respondent. At the time the hearing was due to commence (9.15am) my Associate made multiple telephone calls to Mr Richards endeavouring to alert him to the hearing that he had been directed to attend. No calls were answered.
In response to questions from the Commission, at the hearing on 22 December 2023 Mr Richards’s representative, who had been granted permission limited to being heard at the directions hearings but not on the matter more generally, advised the Commission:
At 4.17pm on 21 December 2023 Mr Richards sent Employee Dismissals a one sentence email indicating that he had not attended on 14 December 2023 because he had been unwell and had a work trial;
Mr Richards had not provided instructions to Employee Dismissals as to whether he intended to proceed with his application; and
Mr Richards was aware of the Directions of 14 December 2023 as they had been sent to him by Employee dismissals (as well as the Commission).
I note that Mr Richards provided no material to his representative to support either explanation. Nor did Mr Richards indicate in his email of 21 December 2023 to his representative that he would not be in attendance on 22 December 2023 or if not why.
At the hearing on 22 December 2023 the employer expressed continuing frustration at having to deal with the matter in circumstances where Mr Richards had not attended, and supported the application being summarily dismissed.
After hearing the parties, I determined that the application be dismissed under s 587 on the ground that it is not being actively prosecuted by Mr Richards in accordance with minimum obligations required of an applicant. I advised the parties and ordered accordingly.
The following are my reasons.
Consideration
Section 587 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.
(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.” (notes omitted)
Mr Richards was represented by Employee Dismissals at the 14 and 22 December hearings. However, his failure to be present in person or to have provided updated instructions to his representative meant that neither proceeding could deal with its stated purpose. Thus, Mr Richards’s failure to attend or relevantly instruct his representative on his interests put both the Commission and the employer to unproductive cost and effort.
Mr Richards’s failure to attend the hearing on 22 December 2023 is a serious matter because it followed his failure to attend the week prior and was in breach of a direction to attend personally, and compounded by the fact that no explanation for non-attendance was foreshadowed. This weighs in favour of dismissing the application under s 587.
The breaches of directions [3] and [4] by Mr Richards are less serious given that Mr Richards had apparently provided an explanation to his representative for the 14 December non-appearance. However, Mr Richards non-attendance on 22 December 2023 has made it impossible for the Commission to test the veracity of that explanation, nor was it directly provided to the Commission as directed. This weighs somewhat in favour of dismissing the application under s 587.
Further, the failure to comply with directions means that Mr Richards representative did not have clear instructions as to whether he intends to proceed in an efficient and responsible manner. This supports a conclusion that Mr Richards has failed to meet the minimum obligations of an applicant.
It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. These are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free.
Mr Richards was put on notice that his application is at risk of being dismissed yet still failed to be compliant.
I was satisfied, in light of Mr Richards’s non-compliance that his application had no reasonable prospects of success as was not being actively prosecuted to a minimum required level. Section 587 was enlivened.
There were no discretionary reasons not to exercise the power on the Commission’s own motion. The employer supported dismissal on this basis.
Conclusion
Mr Richards’s application U2023/10420 was dismissed under s 587. An oral Order was made in the 22 December 2023 hearing and a formal written Order[1] to this effect is issued in conjunction with the publication of this decision.
Postscript
At 10.30am on 22 December 2023, approximately one hour after the hearing concluded and one and a quarter hours after the time proceedings commenced, Mr Richards telephoned my chambers. Mr Richards advised my Associate that he was sick. My Associate suggested that Mr Richards put his position in writing via email and that, if he did so, it would be drawn to my attention.
As at the time I have settled and certified this published version of the Decision and Order (3.00pm 22 December 2023) no such email has been received in chambers from Mr Richards. In any event, I note that an ex tempore decision and order were made during the listed hearing with the consequence that at the time Mr Richards contacted my chambers the application had already been dismissed and remains so.
DEPUTY PRESIDENT
Appearances:
Ms A Dehaloo of Employee Dismissals for the applicant. No appearance in person by the applicant.
Ms A Pertuzzela for the respondent.
Hearing details:
2023.
Adelaide (via telephone)
December 22.
[1] PR769843
Printed by authority of the Commonwealth Government Printer
<PR769835>
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