Have you ever wondered if you can stand in the shoes of a deceased applicant and continue their unfair dismissal proceedings on their behalf? This very question was addressed by the Fair Work Commission late last year in the Walker v Collins Transport [2019] case.

Mr Walker claimed that he was unfairly dismissed by his employer, Collins Transport Group, and lodged an unfair dismissal application. As a first step, the matter went to a conciliation conference with the Commission but was unresolved.

Background

• Unfortunately, Mr Walker was involved in a fatal truck driving accident in late September 2019 and sadly passed away; and,
• Mr Walker’s next of kin, Ms Ronayne, was advised of Mr Walker’s unfair dismissal proceedings and she subsequently discontinued them. However, the Commission was of the view that a key issue remained to be decided: is another person able to “stand in the shoes” of the deceased after his or her death and continue with the proceedings.

Previous cases

After considering the principles expounded in Rohrlach v LM Robertson [2018] and Stan v Frontline [2014], two cases which have dealt with this issue previously, Commissioner Platt found that:

“Mr Walker’s death prevents Ms Ronayne from either pursuing or discontinuing the application as the right to apply for an unfair dismissal remedy cannot be assigned to another person. There is no possibility of making findings about or cross-examining the facts that are in dispute in respect of the application. I find that the application has no reasonable prospects of success and accordingly dismiss it.”

So, what does the Fair Work Act 2009 (Cth) and the Commission Rules say about the ability of another person to continue an applicant’s unfair dismissal claim after death?

Section 394 of the Fair Work Act gives a person the right to make an unfair dismissal application, not an entitlement to the remedy itself. The Commission Rules do not make any provision for the continuance of unfair dismissal proceedings in the event an applicant dies, nor does the Fair Work Act enable substitution of a party – that is, allow another person to “step in”.

In Stan v Frontline, DP Gostencnik stated:

“…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’.”

Outcome

Therefore, in the event that an applicant dies after he or she has lodged their application, the matter will be dismissed by the Commission.

If you have any questions or require further assistance in relation to unfair dismissal applications, please do not hesitate to get in touch with a lawyer in Coleman Greig’s Employment Law team.