1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Damian Stewart v AWD Australia Pty Ltd (U2023/10442) DEPUTY PRESIDENT CROSS SYDNEY, 17 JANUARY 2024 Application for an unfair dismissal remedy [1] Mr Damian Stewart (the Applicant) was employed by AWD Australia Pty Ltd (the Respondent) from 26 October 2022 to his dismissal on 20 October 2023. The Applicant filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 24 October 2023 (the Application). Relevant Facts and Directions [2] On 29 November 2023, my Chambers issued a Notice of Listing for a Member Assisted Conciliation and Directions Hearing (first Directions Hearing), for 5 December 2023. The notice of listing contained draft directions for the filing and materials in this matter which was to be discussed at the directions hearing. [3] On 5 December 2023, the Directions Hearing was held. The Applicant failed to attend. A Hearing was listed for 12 February 2023 and the Draft Directions were issued in final form in a Notice of Listing. The Directions were as follows: 1. Mr Damian Stewart (the Applicant) is directed to file with the Fair Work Commission, and serve on AWD Australia Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 19 December 2023. 2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 31 January 2024. 3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 7 February 2024. [2024] FWC 139 DECISION [2024] FWC 139 2 4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 31 January 2024. [4] On 21 December 2023, my Chambers issued the following email regarding the Applicants non-compliance with the Directions: Dear Parties, I note the Applicant has not complied with Direction [1] of the Commission’s Directions issued on 5 December 2023 (Listing Directions). Please see below Direction: 1. Mr Damian Stewart (the Applicant) is directed to file with the Fair Work Commission, and serve on AWD Australia Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 19 December 2023. The Applicant is required to email Chambers by 4:00pm on 22 December 2023 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission. I draw the parties’ attention to Note c) of the Listing Directions, reproduced below: c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated. Please note that any materials must be filed with the Commission via email to this address, being Chambers.Cross.DP@fwc.gov.au. [5] No response was received from the Applicant. On 11 January 2024, my Chambers issued a further email regarding the Applicants non-compliance. The email relevantly stated: Dear Applicant, I refer to the above matter, and in particular, to the Directions contained within the Notice of Listing dispatched to you on 5 December 2023, which outlines the timeframe for the filing of your submissions and other documents. That Notice, containing the Directions, is again attached for your reference. Chambers has contacted you via email on 21 December 2023 in relation to your non- compliance with Direction [1]. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence. [2024] FWC 139 3 I further draw your attention to Note c) as found in the attached Listing, advising that noncompliance with directions will not be tolerated. Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed. You are required to either: • file and serve your submissions and other documents as outlined in Direction xxx; or • advise that you do not wish to file any materials; or • make a request for an extension of time within which to file your materials, including any reason and evidence to support; by 4:00pm 12 January 2024. [6] On 15 January 2024, having not received a response from the Applicant to the above email, and considering the Applicants materials were 29 days overdue, my Chambers sent the following correspondence to the parties: Dear Parties, Chambers refers to the above matter and notes that a response has not been received to the email below. The Applicant, Mr Damian Stewart, is directed to provide his response by no later than 4:00pm on Tuesday, 16 January 2024. If no response is received by this time, the matter will be dismissed for want of prosecution. [7] To date no response from the Applicant has been received. Relevant Legislation [8] Section 587 of the Act provides: 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. [2024] FWC 139 4 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. Consideration [9] 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). [10] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR770344>