Adrian Taylor v Bryan Zelinski Engineering Pty Ltd T/A Bryan Zelinski Engineering

[2022] FWC 1496

[2022] FWC 1496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Adrian Taylor
v

Bryan Zelinski Engineering Pty Ltd T/A Bryan Zelinski Engineering

(U2022/3135)

DEPUTY PRESIDENT MOLTONI BRISBANE, 14 JUNE 2022

Application under s.399A – applicant’s failure to comply with directions – application dismissed.

1. This decision concerns an application made under s.399A of the Fair Work Act 2009 (Act) by Bryan Zelinski Engineering Pty Ltd (Respondent) to dismiss an unfair dismissal application brought against it by Mr Adrian Taylor (Applicant).

1. On 1 June 2022, I issued directions which required the Applicant to file and serve written submissions, witness statements or other material on which the Applicant intended to rely in response to the Respondent’s contention that the Applicant was not dismissed by 4:00pm on Tuesday 7 June 2022.

1. On 6 June 2022, my Chambers received correspondence from the representative for the Applicant withdrawing from acting for the Applicant and relevantly included the statement “We note we have been unable to contact the Applicant”.

1. My Chambers wrote to the Applicant again that day noting that the Applicant’s representative had withdrawn from acting and re-confirming my direction to file the submissions sought by no later than 4:00pm on Tuesday 7 June 2022. In that correspondence my Chambers also stated:

“If you do not provide the materials as required under the Directions by 4:00pm Tuesday, 7 June 2022, the Deputy President may dismiss your application under s.587 of the Fair Work Act 2009 (reproduced below) without further reference to you.

Your failure to file in accordance with the directions may also expose you to an application by the Respondent that your application be dismissed (under s.399A of the Act, also reproduced below).

Please notify the Commission promptly if you are for some reason incapable of meeting the requirements, such as because of illness or injury. If you wish to withdraw your application for unfair dismissal remedy, please advise.

Section 587 Dismissing applications
[Section 587 omitted]

Section 399A Dismissing applications
[Section 399A omitted]”

1. The Applicant failed to comply with those directions.

1. Following that failure, later on 7 June 2022, the Respondent applied for dismissal of this matter pursuant to s.399A(1)(b) of the Act.

1. In correspondence to the Applicant and the Respondent on 8 June 2022, 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 7 June 2022.

1. The abovementioned correspondence of 8 June 2022 invited the Applicant to make any submissions in relation to the s.399A application by close of business on 10 June 2022 and further advised the Applicant that if no response was received that I proposed to determine the s.399A application on the papers.

1. No response was received.

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 1 June 2022, 6 June 2022, and 8 June 2022. The details of those directions and the hearing are set out in the preceding paragraphs. I consider that the failure was unreasonable for the following reasons:

(A)The Applicant has repeatedly failed to comply with my directions.

(B)I consider that the Applicant has been afforded reasonable opportunity to redress his non-compliance but has failed to do so. 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 comply with my directions and his failure to file his materials. He also failed to respond as to why the Commission ought not dismiss his application pursuant to the Respondent’s s.399A application. 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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