1
Fair Work Act 2009
s.394—Unfair dismissal
Ryan Scott
v
DFP Recruitment Services Pty Ltd
(U2020/8932)
COMMISSIONER BISSETT MELBOURNE, 28 OCTOBER 2020
Application for an unfair dismissal remedy – failure to respond to Commission
correspondence – application not made in accordance with the Fair Work Act – s.587 –
application dismissed.
[1] On 30 June 2020 Mr Ryan Scott made an application to the Fair Work Commission
for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The
application was filed on behalf of Mr Scott by Employee Dismissals Claims as paid agent for
Mr Scott.
[2] The application form filed by Mr Scott’s representative, stated that Mr Scott was
notified of the dismissal and the dismissal took effect on 1 June 2020. In response to question
in relation to any reason why the application was filed outside the 21 day period provided for
in the FW Act, the representative wrote ‘Representative error’ with no further explanation as
to why the application was filed outside 21 days. The file was subsequently allocated to
Deputy President Millhouse to deal with the question of whether an extension of time should
be granted within to make the application.
[3] On 10 July 2020, Deputy President Millhouse’s Chambers sent a letter and directions
to the parties (including Mr Scott’s representative) in relation to the extension of time. Mr
Scott was directed to file material relating to why the application was submitted outside 21
days by no later than close of business on Thursday 16 July 2020. A notice of listing was sent
on the same day to the parties advising the matter had been listed for an Extension of Time
Conference/Hearing by telephone on Monday 20 July 2020 at 3:00pm before Deputy
President Millhouse.
[4] On 16 July 2020 Ms Athena Iliades, of the Respondent sent an email to Deputy
President Millhouse’s Chambers indicating that on the Respondent’s records “Mr Scott was
performing work offshore on 1 June 2020 (the day he says his employment was terminated),
and that a discussion in relation to the cessation of his assignment with the host employer
instead took place on 18 June 2020.” Further advice from the Respondent and a telephone call
to the Applicant suggested that there was some confusion as to the identity of the Applicant’s
employer. Given these issues the file was referred to me to attempt to resolve.
[2020] FWC 5682
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 5682
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[5] On 17 July 2020 my Chambers attempted to contact Mr Scott and Ms Solomon (the
named contact person) of Employee Dismissal Claims. There was no answer from either and
voice messages were left for each to contact the Commission urgently. An email was also sent
following the attempted phone calls to Ms Solomon to contact the Commission.
[6] On 19 July 2020 an email was received from Ms Solomon advising she would attempt
to gather relevant material for the extension of time hearing however this would be lodged
outside the directions set.
[7] On 20 July 2020 a notice of listing was sent to parties cancelling the Extension of
Time Conference/Hearing listed for later that day. A further email was sent to Ms Solomon
explaining that there appeared to be some confusion with respect to the identity of the
Respondent, requesting she contact the Commission urgently and advising that a failure to do
so may result in the application being dismissed.
[8] Soon thereafter Mr John Birmingham, also of Employee Dismissal Claims,
representing Mr Scott telephoned my Chambers and attempted to provide a reason for the late
filing of the application. It was explained to Mr Birmingham that the last email from the
Commission was in relation to confusion surrounding the Respondent and that the extension
of time hearing had been cancelled. Mr Birmingham said he was about to commence a
conciliation conference in relation to a separate application and he would call the Commission
back. Mr Birmingham did not contact my Chambers, despite having undertaken to do so. A
follow up email was sent to Mr Birmingham requesting a call back as soon as possible. No
response has yet been received from Mr Birmingham.
[9] On 21 July 2020, in a final attempt to resolve confusion over the application, the
matter was listed for a Mention by telephone on 24 July 2020 at 2:00pm. Mr Scott and Mr
Birmingham were directed to provide contact details for the Mention. Neither provided
contact details nor was contactable for the Mention.
[10] On 27 July 2020 directions were subsequently issued to Mr Birmingham requesting
clarification with respect to the application by no later than 4:00pm Wednesday, 29 July 2020.
Those directions indicated that a failure to comply may result in the application being
dismissed under s.587(1)(c) of the FW Act. An email was also sent to Mr Scott advising that
an email had been sent to his representative and there was a direction to provide clarification
surrounding the Respondent.
[11] To date, no response has been received from Mr Scott nor Mr Birmingham or Ms
Solomon.
[12] Section 587 of the FWA 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
[2020] FWC 5682
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(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.
[13] This application for relief from unfair dismissal has taken a substantial amount of
Commission time and resources in seeking clarification of the application from the
Applicant’s representatives at Employee Dismissal Claims. That Mr Birmingham from
Employee Dismissal Claims failed at every juncture to provide the Commission with accurate
information in relation to an application he filed as a paid agent on behalf of his client is
concerning. His failure to comply with directions of the Commission, respond to basic
correspondence or return telephone calls does not demonstrate the attention to detail expected
of a paid agent in the Commission. The Commission accepts that at times inadvertent errors
are made on applications or other material filed. The appropriate course of action, having
been made aware of such errors, is to rectify them at the earliest opportunity. In relation to
this file that has not been done and requests to do so ignored. An early response, admission of
the error and rectification or withdrawal of the application would have saved the Commission
much time and effort.
[2020] FWC 5682
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[14] In these circumstances I have determined on my own motion that the application be
dismissed pursuant to s.587(1)(a) and (c) of the FW Act. The application was not complete
and therefore not made in accordance with the FW Act and, given the Applicant and Mr
Birmingham’s failure to engage with the Commission, has no reasonable prospects of success.
An order1 to this effect will be issued shortly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR723834
Endnote:
1 PR723836
THE FAIR WORK MMISSION THE SEAL
