Zac Chard v The Corner Shoppe Pty Ltd

[2024] FWC 1364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Zac Chard
v

The Corner Shoppe Pty Ltd

(U2024/2048)

COMMISSIONER HUNT

BRISBANE, 23 MAY 2024

Application for an unfair dismissal remedy

On 24 February 2024, Mr Zac Chard made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with The Corner Shoppe Pty Ltd (the Respondent) and that his dismissal was harsh, unjust and unreasonable.

On 3 April 2024, I issued directions requiring the parties to file material by certain dates and notified the parties of a telephone conference to be convened on 12 April 2024. Mr Chard attended this conference.

The directions required Mr Chard to file and serve material in support of his application by no later than 15 May 2024. Mr Chard did not file any material in accordance with the directions. Accordingly, on 16 May 2024 I informed the parties that the matter would be listed for a Non-Compliance Hearing by video using Microsoft Teams on 21 May 2024.

Mr Chard did not join the video link for the Non-Compliance Hearing at the listed time. My Associate contacted Mr Chard by telephone and enquired whether he planned to attend the Non-Compliance Hearing. Mr Chard stated that he would shortly attend; however, he did not appear. My Associate then attempted to contact Mr Chard by telephone again, this time without success.

Section 587 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.

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.”

After considering Mr Chard’s failure to file material in accordance with the directions and his failure to attend the Non-Compliance Hearing without a reasonable explanation, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to s.587(3)(a) of the Act. Mr Chard has demonstrated an unwillingness to prosecute his own application and consequently I find that the application has no reasonable prospects of success.

An Order to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was asked to consider an unfair dismissal application made by Zac Chard against The Corner Shoppe Pty Ltd. Mr Chard alleged that he had been dismissed from his employment and that the dismissal was harsh, unjust, and unreasonable. The application was brought under section 394 of the Fair Work Act 2009. The Commission was required to determine whether the dismissal was unfair and, if so, whether to grant any remedies. The primary legal issue was whether the dismissal met the criteria of being harsh, unjust, or unreasonable under the Act.

The Commission considered the procedural aspects of the application, including Mr Chard’s failure to comply with directions to file material in support of his application by a specified date. The Commission scheduled a telephone conference to address these issues, which Mr Chard did not attend. The Commission further scheduled a Non-Compliance Hearing via video conference, which Mr Chard also failed to attend without providing a reasonable explanation. As a result, the Commission found that Mr Chard had demonstrated an unwillingness to prosecute his own application, leading to the conclusion that the application had no reasonable prospects of success.

Based on the failure to comply with procedural requirements and the absence of a reasonable explanation for not attending the scheduled hearings, the Commission dismissed the application under section 587(1)(c) of the Act. The decision was made at the Commission’s initiative under section 587(3)(a) of the Act, recognising that Mr Chard’s conduct indicated an unwillingness to pursue his application. The Commission issued an order dismissing the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established