Zachary Chapman v Olympic Fencing (NSW) Pty. Limited

[2022] FWC 3052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Zachary Chapman

Olympic Fencing (NSW) Pty. Limited

(C2022/6006)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 17 NOVEMBER 2022

Application to deal with contraventions involving dismissal - application dismissed

This decision relates to a general protections application involving dismissal by Mr Zachary Chapman pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act) against his former employer, Olympic Fencing (NSW) Pty. Limited.

The matter was listed for a directions hearing by telephone on 10 November 2022. There was no appearance by or on behalf of Mr Chapman.

At the commencement of the directions hearing, my Associate attempted to telephone to Mr Chapman about the matter and as the call was not answered, a voicemail message requesting a return call was left. A further telephone call was made shortly thereafter, again, the call was not answered and a voicemail message requesting a return call was left. Mr Chapman has not responded to these messages.

Following the directions hearing, an email in the following terms was sent from my Chambers to the parties:
“Dear Mr Chapman and Mr Braithwaite
I refer to the directions hearing, by telephone, in this matter before Deputy President Saunders at 9am today.
Mr Chapman did not attend the directions hearing. Mr Braithwaite and Mr Hillwig appeared for the respondent.
The respondent has informed the Fair Work Commission that it wishes to apply for the dismissal of Mr Chapman’s general protections application on the basis that Mr Chapman has failed to attend two conciliation conferences and one directions hearing before the Fair Work Commission. The respondent contends that Mr Chapman is not prosecuting his application, with the result that it should be dismissed.
Deputy President has listed the respondent’s application for the dismissal of Mr Chapman’s general protections application for hearing, by telephone, at 9am on Thursday, 17 November 2022.
Mr Chapman, it is very important that you attend the hearing, by telephone, at 9am on Thursday, 17 November 2022 if you wish to pursue your general protections application against the respondent. If you do not make an appearance at the hearing next Thursday at 9am, or contact us before then, your general protections application may be dismissed without further notice to you. As an alternative, you may notify us that you wish to discontinue your general protections application against the respondent.
Please do not hesitate to contact me if you would like to discuss this matter.”

On 17 November 2022, a hearing in relation to the respondent’s application to dismiss Mr Chapman’s application was held. Again, there was no appearance by or on behalf of Mr Chapman.

At the commencement of the hearing my Associate attempted to telephone Mr Chapman about the matter and as the call was not answered, a voicemail message requesting a return call was left. Mr Chapman has not responded to this message.

There has been no response to the telephone calls or any correspondence to Mr Chapman since the matter has been allocated to my Chambers on 4 November 2022.

In light of Mr Chapman’s failure to appear at the directions hearing on 10 November 2022 and the hearing on 17 November 2022, together with the absence of any communication from Mr Chapman, I have decided to exercise my discretion pursuant to s.587(1) of the Act to dismiss Mr Chapman’s general protections application against the respondent in these proceedings. The application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Zachary Chapman v Olympic Fencing (NSW) Pty. Limited involved a general protections application brought by Mr Chapman against his former employer, Olympic Fencing (NSW) Pty. Limited. Mr Chapman alleged that he was dismissed in contravention of section 365 of the Fair Work Act 2009. The matter was heard before Deputy President Saunders in the Fair Work Commission in Newcastle. Mr Chapman did not appear at the directions hearing or the subsequent hearing to determine the respondent’s application to dismiss Mr Chapman’s application. Despite attempts to contact Mr Chapman via telephone and email, he did not respond or make any appearance.

The primary legal issue before the Deputy President was whether to dismiss Mr Chapman’s general protections application due to his failure to appear at the required hearings and respond to correspondence from the Fair Work Commission. The respondent argued that Mr Chapman had not prosecuted his application, as he had not attended two conciliation conferences and one directions hearing. The Deputy President considered whether to exercise discretion to dismiss the application under section 587(1) of the Act.

In dismissing the application, the Deputy President noted Mr Chapman’s failure to appear at the directions hearing and the subsequent hearing, and his lack of response to any attempts to contact him. The Deputy President exercised their discretion under section 587(1) of the Act to dismiss the application, as Mr Chapman had not actively pursued his application. The application was therefore dismissed, and no further action can be taken without Mr Chapman lodging a new application.

This decision underscores the importance of active participation in proceedings before the Fair Work Commission, particularly when it comes to general protections applications. Failure to attend required hearings and respond to correspondence can result in the dismissal of the application, as was the case here.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established