DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thomas Lynch
v
Reward Hospitality
(U2018/5478)

Application for an unfair dismissal remedy – Applicant found guilty of sexual assault without consent – Applicant incarcerated until 2026 – Application has no reasonable prospects of success – Application dismissed.

[1] On 25 May 2018, Mr Thomas Lynch (the Applicant) applied to the Commission under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Reward Hospitality (the Respondent).

[2] The matter was listed for a conciliation before a Fair Work Commission Conciliator on 31 May 2018, however the conciliation could not proceed. The matter was allocated to me on 1 June 2018.

[3] I listed the matter for Directions on 21 June 2018. At the Directions Hearing, the Applicant advised he was involved in criminal proceedings before the Northern Territory Supreme Court. The Applicant requested an adjournment of the Unfair Dismissal application on the basis the outcome of the criminal trial would be relevant to these proceedings. I ultimately granted the request and adjourned the proceedings pending the outcome of the criminal trial.

[4] On 3 September 2018, my chambers received an email from Ms Tanya-Larsen Smith who advised she was the partner of the Applicant. Ms Larsen-Smith said in her email that the Applicant had been convicted of two counts of sexual assault without consent on 17 August 2018, and that the Applicant was on remand at Darwin Correction Centre and as such was unable to correspond or communicate directly.

[5] Ms Larsen-Smith further advised in the email that the matter was subject to an appeal which was being lodged on the same day in the NT Supreme Court and ultimately the NT Criminal Court of Appeal. Ms Larsen-Smith advised that should the appeal be successful it was the Applicant’s intention to continue with this application before the Fair Work Commission.

[6] I decided to again adjourn the matter pending the outcome of the appeal process in the criminal matter.

[7] On 11 November 2018, my chambers contacted Ms Larsen-Smith on her mobile to seek an update in relation to the appeal process. Ms Larsen-Smith advised the matter was still before the Supreme Court and that Mr Lynch was requesting to have the matter held over until the appeal process was finished, because the outcome would affect the outcome of his Unfair Dismissal application. It was requested Ms Larsen-Smith keep the Commission and the other side informed of any updates in relation to the appeal.

[8] On 4 June 2019, my chambers again contacted Ms Larsen-Smith for an update on the appeal process. Ms Larsen-Smith advised that the Applicant’s Supreme Court proceedings were still on foot and the matter was heard on Tuesday 28 May. Ms Larsen-Smith indicated the judge reserved his decision and it could be a few months before it is issued. It was requested that the Commission be notified once this decision was issued.

[9] The same day my chambers sent correspondence in writing to both parties providing an update in relation to the matter, and advised once a decision for the appeal in the criminal matter had been handed down the Unfair Dismissal application would be listed for a Mention.

[10] Some six months went by with no contact from the Applicant or his support person Ms Larsen-Smith. On 14 January 2020 my chambers contacted Ms Larsen-Smith for an update. Ms Larsen-Smith advised there had not been a decision issued and the Applicant was still awaiting the outcome.

[11] Another six months went by with no contact from the Applicant or his support person. On 27 July 2020 my chambers sent correspondence to Ms Larsen-Smith requesting chambers be provided with an update on the Applicant’s Supreme Court appeal, and to advise as soon as possible whether the Applicant intended to pursue the application by 31 July 2020.

[12] On 3 August 2020, Ms Larsen-Smith sent an email to the Commission that read as follows:

“…My sincere apologies for the delayed response. Unfortunately I was not able to get instructions from Thomas until late last week. He has advised me to inform the Commission that he would like to proceed with the application as it stands. He understands that his incarceration may present some logistical delays but hopes these can be worked through as the matter proceeds…”

[13] Ms Larsen-Smith also provided contact details for Mr Lynch at the Darwin Correctional Centre.

Mention 22 October 2020

[14] The matter was listed for Mention on 22 October 2020, and arrangements were made for the Applicant to appear by telephone from the Darwin Correctional Centre.

[15] At the Mention, the Applicant advised the Commission that his appeal to the Criminal Court of Appeal was unsuccessful and that the full-time length of his sentence would be a release date in 2026.

[16] I put it to the Applicant my preliminary concerns regarding the practicality of proceeding with the Application given his criminal conviction was going to involve him being incarcerated until 2026.

[17] It was put to the Applicant that his primary remedy of reinstatement may therefore be problematic on the basis it would be inappropriate to issue the Respondent with an Order that they could not comply with. The Applicant agreed this may be the case. I then asked the Applicant what his current position was in relation to remedy, to which the Applicant replied he now sought compensation of 16 weeks pay to reimburse him from the time he was stood down without pay until he obtained full time employment.

[18] I put the Applicant on notice that I did not have power to award compensation for periods prior to the dismissal itself. I advised the Applicant that I could only deal with the application before me, and s.392 provides I was limited to awarding compensation for loss of remuneration that would have been received, or likely to have been received, had he not been dismissed on 17 May 2018. It was put to the Applicant that it appeared there was no argument that it was not this period he suffered a financial disadvantage given his new employment, but rather the loss suffered was from an earlier period.

[19] The Applicant said the bones of the argument was that he wanted the Commission to make a decision on whether the Respondent’s decision to terminate him as a result of a newspaper article was fair. He submitted the application was more about this point, rather than the compensation.

[20] I put it to the Applicant that I had concerns with programming this matter for a hearing, when on the face of the Application, either of the remedies appear not to be obtainable. I advised of my preliminary view, that in circumstances where it appears to be that there is no reasonable prospect of either remedy being achievable, then it would not be appropriate for the Commission to be conducting the hearing as some sort of academic exercise, when the basis of the purpose of these applications could not be achieved.

[21] The Applicant advised he was in the process of trying to obtain Legal Aid funding with the possibility of appealing his criminal matter to the High Court of Australia, and that the outcome of that matter could alter the prospect of success with this application if he was released before 2026.

[22] The Respondent submitted that even if the Applicant’s appeal to the High Court was successful, that process could take another one to two years, and this would be prejudicial to the Respondent given the matter has already been held over for over two years.

[23] Mr Lynch was given until close of business 28 October 2020 to confirm to the Commission whether he had been successful in obtaining the funding to appeal to the High Court.

[24] On 27 October 2020, Ms Larsen-Smith contacted chambers by telephone advising that Mr Lynch had advised that the decision from NT Legal Aid was now scheduled for next Friday, 6 November 2020. Ms Larsen-Smith confirmed this in writing.

[25] My chambers sent an email to the Respondent requesting it advise if it was agreeable to the Applicant being granted an extension until 6 November 2020 to advise the Commission in relation to his application for Legal Aid funding. The Respondent advised it agreed to the extension request on this occasion.

[26] The Applicant was given an extension to advise the Commission by 6 November 2020.

[27] The Commission did not receive an update from the Applicant by 6 November 2020.

[28] My chambers sent an email to Ms Larsen-Smith on 9 November 2020 directing the Applicant to provide the requested advice to the Commission and the other side by close of business that same day. Ms Larsen-Smith responded that the Applicant had advised that Legal Aid only received the brief last Friday (4 November 2020) and have requested a further week to consider his application.

[29] The Respondent was asked if it was agreeable to the Applicant being granted a further extension to provide the Commission with advice as to the status of his application for funding until 13 November 2020. The Respondent responded that it did not object to a further extension provided this was the final delay anticipated to occur in this matter.

[30] The Applicant was given a further extension to advise the Commission by 13 November 2020.

[31] On 13 November 2020, Ms Larsen-Smith sent an email to chambers that provided:

“…Thomas has been advised by NT Legal Aid that a decision is still not forthcoming. He has been asked to call back Monday.

Given the size of the brief and the reviewing lawyer having only received the brief a week ago, I anticipate we may receive the same answer Monday as well. Thomas acknowledges this is inconvenient to all and is naturally just as keen to have an answer on his application soon.”

[32] On 26 November 2020, Ms Larsen-Smith sent a further email to my chambers that read as follows:

“I visited Thomas today. The phones are broken in his block and his contact has been sparodic (sic). He advised that NT Legal Aid have made a decision but they wouldn’t tell him over the phone. Rather he was told a letter was being sent to him this Friday. Unfortunately that will take a couple of weeks to reach him due to delivery delays and vetting of the mail. He suspects that on that basis the application has been denied. He has one more review open to him but will await the letter to decide which way to go.”

[33] On 19 January 2021, the Respondent’s representative sent an email to chambers that read as follows:

“I am instructed by the Respondent to write to you to respectfully request confirmation on the progress of this matter following the directions hearing on 22 October 2020 in which the Commissioner indicated that he was inclined to dismiss the claim subject to the Applicant providing confirmation within a specified period of time on whether Legal Aid had approved his application for funding for an appeal of the criminal proceedings. The email below dated 26 November 2020 from Ms Larsen-Smith was the latest correspondence the Respondent has received in respect of this matter, and while it appreciates the difficulties in contacting the Applicant, is hopeful that this matter can be put to rest in consideration of the extended period of time since the claim was initially commenced.”

[34] On 25 January 2021, Ms Larsen-Smith sent an email to chambers that provided:

“Thomas advises that he has an upcoming teleconference with the NT Legal Aid panel. A date has not been scheduled yet and he is awaiting advise on timings.”

Legislation

[35] 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.”

[36] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[37] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 1 Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.2

[38] Generally, for an application to have no reasonable prospect of success, it must be manifestly untenable and groundless. 3

Consideration

[39] I am inclined to adopt my earlier view that this application has no reasonable prospect of success, given neither of the remedies for this application appear to be obtainable, and it is therefore not appropriate for me to conduct a hearing for this matter when the purpose of this application cannot be achieved.

[40] There has been no dispute from the Applicant that the financial loss of income suffered by him was from a period before his dismissal, being during the time he was stood down without pay until he secured full-time employment. The Applicant did not dispute that he did not incur any loss of income following his dismissal due to securing another job by the time he was dismissed on 17 May 2018. As explained to the Applicant at the Mention on 22 Ocotber, the Commission does not have power to award compensation for periods prior to the dismissal itself. I therefore find compensation would not be an obtainable remedy.

[41] In relation to reinstatement, I am also of the view that there is no reasonable likelihood that this remedy is obtainable given the Applicant is currently incarcerated until 2026. The Applicant has put forward a view that it may be possible for him to be released earlier than this, as he is currently in the process of trying to obtain funding to make an application to the High Court of Australia to appeal the decision of the Criminal Court of Appeal. However, since October 2020 the Applicant has not been able to provide the Commission with any clear indication as to the status of this application.

[42] Further, I accept the Respondent’s submission that even in the event Mr Lynch was successful in his application to appeal the criminal matter in the High Court, the potential length of that process would likely to be prejudicial to the Respondent particularly in the circumstances where it is now coming up to almost three years since the Application was lodged with the Commission.

[43] Given the above findings, I am of the view that the application is manifestly untenable and groundless and therefore has no reasonable prospects of success. The application is therefore dismissed.

COMMISSIONER

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 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

 2   Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

 3   (AIRCFB, Giudice J, Williams SDP, Foggo C, 23 December 2002) Wright v Australian Customs Services, PR926115 at para. 23.