Alan Keevers v Farfield Holdings Pty Ltd as trustee for R Gullotto Family Trust trading as Capital Recycling

[2018] FWC 2794

[2018] FWC 2794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alan Keevers
v
Farfield Holdings Pty Ltd as trustee for R Gullotto Family Trust trading as Capital Recycling
(U2018/2920)

DEPUTY PRESIDENT BINET PERTH, 19 JUNE 2018

Application for an unfair dismissal remedy – application dismissed.

[1] On 20 March 2018, Mr Alan Keevers (Mr Keevers) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed Farfield Holdings Pty Ltd as trustee for R Gullotto Family Trust trading as Capital Recycling (Capital Recycling).

[2] On 29 March 2018, Capital Recycling lodged a Form F3 Employer Response, noting it had a jurisdictional objection to the application, namely that Mr Keevers’ dismissal was a case of genuine redundancy.

[3] The matter was listed for a telephone conciliation before a FWC staff conciliator on 19 April 2018. Mr Keevers indicated to the conciliator that he did not wish to participate in the conciliation and preferred that the matter be allocated to a Member for hearing and determination.

[4] The matter was subsequently allocated to my Chambers. On 30 April 2018 a Notice of Listing was sent to the parties to inform them that the matter had been listed for a conference on 8 May 2018 (Conference).

[5] On 8 May 2018, Mr Markham attended at the FWC on behalf of Capital Recycling to participate in the Conference. Mr Keevers did not attend the Conference nor did he make any contact with Chambers to advise that he would not be in attendance. Efforts were made to reach Mr Keevers by telephone on several occasions shortly after the listed commencement time of the Conference but he could not be reached.

[6] On 8 May 2018 the parties were invited to make submissions by close of business on 15 May 2018 as to whether the matter should be dismissed pursuant to section 399A of the FW on the grounds that Mr Keevers unreasonably failed to attend a conference conducted by the FWC (Dismissal Application).

[7] On 14 May 2018, Capital Recycling filed with the FWC and served on Mr Keevers a Dismissal Application.

[8] Mr Keevers did not file any written submissions as to why his unfair dismissal application should be dismissed, nor contact Chambers by the due date.

[9] Section 399A of the FW Act provides as follows:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[10] I am satisfied that Mr Keevers has unreasonably failed to attend a conference conducted by the FWC relating to his Application.

[11] On the application of Capital Recycling and in the exercise of my discretion under section 399A(1) of the FW Act, the Application is dismissed. An order to this effect (PR608052) will be issued with this decision.

DEPUTY PRESIDENT

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