Fair Work Act 2009
s.394—Unfair dismissal

Peter James Dwyer
v
Papa Organics Pty Ltd
(U2021/8187)

Application for an unfair dismissal remedy – application filed outside of statutory timeframe – application for extension of time - applicant deceased prior to determination of application – whether application survives death of applicant – no reasonable prospect of success –application dismissed

[1] This matter concerns an application by Mr Peter James Dwyer (Mr Dwyer/the Applicant) for relief for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), on the basis that he alleged the termination of his employment with Papa Organics Pty Ltd (the Respondent) was harsh, unjust and or unreasonable.

[2] Part 1.5 of the Form F2 application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Mr Dwyer answered on the Form F2 “No” and provided an explanation concerning the delay.

[3] The matter was allocated to me to determine whether an extension of time should be granted to Mr Dwyer to file his unfair dismissal application. I listed the matter for directions on 13 October 2021.

[4] On the morning of 13 October 2021, the Respondent emailed my chambers notifying that Mr Dwyer had sadly passed away the previous day. On 13 October 2021, the directions hearing continued with the Respondent to confirm the information received earlier that day.

Consideration

[5] As the Deputy President observed in Stan v Frontline Australasia, 1 s.394 of the Act confers upon the aggrieved employee only the right to make an application for a remedy for unfair dismissal, not an entitlement to the remedy itself.2 He further noted that the nature of the right to apply for the remedy, combined with the ‘personal and discretionary nature of the remedy’ that may be awarded to a successful Applicant, makes it unlikely that the right to bring and pursue the application would constitute ‘something that may be assigned, transmitted, devolved or passed to another person even assuming there is power to make such an order’.

[6] In that case, the Deputy President held that the application no longer had any reasonable prospect of success and should be dismissed, finding that the prospects of success were drastically altered when the Applicant in that matter passed away. 3 Further, in circumstances where evidence cannot be obtained from the Applicant and which cannot be subject to cross-examination, the Deputy President considered that any factual disputes could not be properly tested.4

[7] It also was observed by Commissioner Riordan in Cantwell v Olympus Medical Centre (Brisbane City) Pty Ltd, 5 in dismissing a costs application against a recently deceased party, that the matter could not be determined ‘without denying the Applicant her legal right of natural justice and procedural fairness’.

Conclusion

[8] I consider that the Applicant’s passing prevents the application from being either pursued or discontinued by another person, and consequently the application has no reasonable prospects of success. Accordingly, the application is dismissed under s.587(1)(c) of the Act.

COMMISSIONER

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 1   [2014] FWC 5457.

 2   Ibid at [7].

 3   Ibid at [14].

 4   Ibid at [15]-[16].

 5   [2018] FWC 1457 at [21].