Unfair dismissal cannot survive death

An unfair dismissal case cannot be pursued or continue after the death of an applicant.

“Application for an unfair dismissal remedy

[1] Mr Kipyego (the Applicant) applied for an unfair dismissal remedy, having been purportedly dismissed from Go Catalyst HR Consulting Pty Ltd (the Respondent) on or around 26 October 2021. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).

[2] Directions were sent on 1 December 2021, 10 December 2021, and 14 December 2021. No response was received by the Applicant. The matter was set down for a non-compliance hearing on Thursday, 23 December 2021. On 20 December 2021, the Respondent emailed the Commission advising that it had been notified by the police on 12 December 2021 that the Applicant had passed away on 12 December 2021. By statutory declaration dated 23 December 2021, a representative of the Respondent confirmed that which had been conveyed to her by the Major Crash Investigation Section of the Western Australia Police Force.

[3] The Applicant’s Form F2 Unfair Dismissal Application revealed that he was self-represented. Materials filed by the Applicant shed no light on who else may be contacted on his passing. While multiple emails have been sent to the Applicant, understandably they remain unanswered.

[4] It is apparent from the materials filed that the Applicant was a ‘non-resident’ of Australia. He had explained in his email correspondence to Chambers the reason for filing his application late. Those reasons included homelessness for a period, mental incapacity, and a failure to be able to secure assistance from a hospital because he was unable to pay the fee associated with receiving treatment in the absence of Medicare eligibility.

[5] In Stan v Frontline Australasia (Stan), 1 Deputy President Gostencnik considered whether another person could proceed with an application for relief from unfair dismissal pursuant to s 394 of the Act in circumstances where the applicant is deceased. In relation to s 394 of the Act, the Deputy President said:

s.394 of the Fair Work Act 2009 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. 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 Rohrlach v L.M. Robertson & P.F. Robertson (Rohrlach), 2 Commissioner Simpson summarised a number of observations of Deputy President Gostencnik relevant to the question of whether an application could survive where the applicant is deceased. The matters raised by Deputy President can be put as follows:

(1) There is a requirement for evidence of legal authority to purport to continue the application;

(2) There is no rule in the Fair Work Commission Rules contemplating capacity to continue proceedings in the event of death as is the case in the Federal Court rules;

(3) There is no express power or provision in the Fair Work Act (FW Act) to allow a substitution of a party;

(4) The right under the FW Act to make an unfair dismissal remedy application is personal to the dismissed employee and is non-assignable;

(5) The remedies available under the FW Act of compensation is intertwined with and not severable from the discretionary considerations relating to an order for reinstatement;

(6) The personal and discretionary nature of the remedies that might have been available had the application been successful make it unlikely that the right to bring and maintain the application is something that can be assigned, transmitted, devolved or passed to another person assuming such a power exists (although the Deputy President found he did not need to determine this matter to finality);

(7) The Applicant could not be cross-examined with respect to disputed facts supporting a conclusion that the application had no reasonable prospect of success and the application was dismissed on that basis.

[7] In both Stan and Rohrlach, it was held that the application no longer had any reasonable prospect of success and should be dismissed under s 587(1)(c). I adopt the approach taken in Stan, as expressed in Rohrlach.

[8] It is evident that there is an absence of legal authority to continue the application. The Applicant was self-represented and there appears to be no avenue to identify who may have authority on his behalf.

[9] I consider that, as the Applicant’s untimely passing prevents the application from being either pursued or discontinued by another person, the application has no reasonable prospects of success. Accordingly, the application is dismissed under s 587(1)(c) of the Act. An Order 3 giving effect to this decision will issue concurrently.”

Kipyego v Go Catalyst HR Consulting Pty Ltd (2021) FWC 6699 delivered 24 December 2021 per Beaumont DP