Adam Casey v We Build Pools Pty Ltd T/A the Pool Reno Guy

[2022] FWC 1121

[2022] FWC 1121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Adam Casey
v

We Build Pools Pty Ltd T/A The Pool Reno Guy

(U2021/11610)

DEPUTY PRESIDENT MOLTONI BRISBANE, 11 MAY 2022

Application under s.399A – applicant’s failure to comply with directions – no explanation for failure – application dismissed.

1. This decision concerns an application made under s.399A of the Fair Work Act 2009 (Act) by We Build Pools Pty Ltd T/A The Pool Reno Guy (Respondent) to dismiss an unfair dismissal application brought against it by Mr Adam Casey (Applicant).

1. On 12 April 2022, I issued directions which required the Applicant to file and serve written submissions in relation to the merits and any witness statements or other material on which the Applicant intended to rely in support of his application for an unfair dismissal remedy by 5:00pm on Tuesday 19 April 2022. The Applicant failed to do so. On 20 April 2022, my Chambers wrote to the Applicant’s representative, noting that the material had not been filed and granting an extension to file the material together with a reasonable explanation for the failure to comply with the directions by 5:00pm on Friday 22 April 2022. No response was received. My Chambers wrote to the Applicant’s representative again on 26 April 2022 requiring the Applicant’s representative to provide any advice or explanation to the Commission by midday on Wednesday 27 April 2022 warning that failure to follow directions would result in the Commission considering the dismissal of the application for an unfair dismissal remedy, pursuant to either s.399A or s.587 of the Act.

1. On 26 April 2022, the Respondent applied for dismissal of this matter (and related matter U2021/11612) pursuant to s.399A(1)(b) of the Act. On that same day, the Applicant’s representative sent an email to my chambers in respect of this matter, and related matter U2021/11612, which alleged certain serious issues but relevantly included a statement that “Mr Casey has not responded to our efforts to contact him”. My Chambers responded and provided the Applicant’s representative with a further extension to midday on Thursday 28 April 2022 to provide reasoning as to why the application should not be dismissed as a result of the Applicant’s failure to follow directions and meet agreed deadlines.

1. On 27 April 2022, the Applicant’s representative gave notice that they had ceased to act for the Applicant as they had been unable to secure instructions from him. The Respondent’s representative wrote to my Chambers to maintain their position, being that the Applicant’s application should be dismissed.

1. On 27 April I listed the matter for a non-compliance hearing to occur at 4:30pm on 28 April 2022. I also wrote to the Applicant and set out all of the directions that had at that stage not been complied with.

1. The Applicant did not attend the non-compliance hearing on 28 April 2022. At the hearing, I waived the requirement of the Fair Work Commission Rules (Rules) that the Respondent’s s.399A application be lodged on a Form F1 (the general form to be used for applications in respect of which no other form is prescribed by the Rules). I did so because the grounds for the application were simply and concisely set out in the Respondent’s correspondence of 26 April 2022. However, I declined to dismiss the Applicant’s application at that time and determined instead that it was appropriate to grant the Applicant until the close of business on 4 May 2022 to provide any submissions he may wish to make in response to the Respondent’s application, whereafter I proposed to determine the s.399A application on the papers.

1. On 29 April 2022, my Chambers wrote to the Applicant, advising him of the outcome of the non-compliance hearing and affording him with the opportunity to respond to the Respondent’s application prior to making any determination on the papers as noted in the preceding paragraph.

1. The Applicant did not respond and did not make any submissions.

1. Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant ‘has unreasonably failed to comply with a direction or order of the FWC relating to the application’ (s.399A(1)(b)). I am satisfied that the Applicant unreasonably failed to comply with my directions of 12 April 2022, 20 April 2022, 26 April 2022, 27 April 2022, and 29 April 2022 and that he failed to attend the non-compliance hearing of 28 April 2022. The details of those directions and the hearing are set out in the preceding paragraphs. The Applicant failed to comply with those directions and failed to attend the hearing as directed. I consider that the failure was unreasonable for the following reasons:

(A)The Applicant has repeatedly failed to offer any reasonable explanation for his failure to comply with the directions.

(B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress his non-compliance but has failed to do so. In particular, the application was listed for a non-compliance hearing, which, as I explained to the Applicant, was to serve the purpose of allowing him to explain why he had failed to comply with the directions, but he did not attend the hearing. Nor has the Applicant since provided an acceptable explanation for his failure or given any indication that he intends to file his materials in the near future. Nor has the Applicant filed any submissions as to why his application should not be dismissed pursuant to the s.399A application brought by the Respondent.

1. My discretion to dismiss the Applicant’s unfair dismissal application under s.399A has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for his failure to comply with my directions and the fact that he has persisted in failing to file his materials. He also failed to attend the non-compliance hearing. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application. The Respondent is entitled to understand the case that is put against it in good time so that it may properly respond. This is a matter of basic fairness.

1. For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.399A.

1. Pursuant to s.399A, the Applicant’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

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