Alan Petersen v Retic Water Pty Ltd

[2016] FWC 2203

[2016] FWC 2203 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alan Petersen
v
Retic Water Pty Ltd
(U2015/14925)

COMMISSIONER WILSON MELBOURNE, 2 MAY 2016

Application for relief from unfair dismissal - application dismissed pursuant to section 399A of the Act.

[1] On 10 November 2015 Alan Petersen made an application for unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Mr Peterson’s employment was terminated by Retic Water Pty Ltd (Retic) on 28 October 2015 for alleged serious misconduct. Prior to dismissal, Mr Petersen had been employed by Retic as its Plant Manager, at Echuca, Victoria.

[2] The matter was the subject of conciliation on 9 December 2015, however the matter was not resolved, including for the reason that Retic contested the Commission’s jurisdiction to deal with the application on the grounds that Mr Petersen was not a person protected from unfair dismissal remedy. In particular, it was argued by Retic that the Applicant was not covered by a modern award; that an enterprise agreement did not apply to him; and that Mr Petersen’s earnings exceeded the high income threshold.

[3] Directions were issued by the Commission on 23 December 2015 and the matter was listed for hearing on 22 January 2016 with the hearing to commence not before 2 PM AEDT/11 AM WST. The Notice of Listing advised the purpose of the hearing was to address the jurisdictional objection made by Retic and required the filing of materials by each party.

[4] The directions for filing were complied with by the parties, with the Respondent filing an outline of submission and witness statements on Friday, 8 January 2016 and the Applicant filing an outline of submission and witness statement on Monday, 18 January 2016.

[5] After allocation of the matter to my Chambers, an initial perusal of the file indicated potential logistical issues with the hearing of the matter, and these concerns were raised with the parties on 19 January 2016 as follows;

“Dear Parties,

I refer to the above matter, which has been allocated to Commissioner Wilson.

Perusal of the file indicates that the parties and their representatives are located in Melbourne, Perth and Echuca. The matter is currently listed for Jurisdiction hearing in person in Melbourne, which raises some logistical concern.

If both parties indicate a preference for the hearing to be conducted by telephone, the listing will be amended as such. In the absence of consent from both parties for a telephone listing, the matter will remain listed for hearing in person in Melbourne, however the Commissioner will consider individual requests for alternative methods of appearances.

Your advice on these matters is sought by noon AEDT tomorrow, that is Wednesday, 20 January 2016.

Correspondence in this matter should be directed to the contact details below.

Sincerely,

[Associate to Commissioner Wilson]”

[6] Neither party provided a response to the aforementioned email.

[7] On the evening of Thursday, 21 January 2016 at 5:04 PM, Mr Petersen’s solicitors forwarded correspondence to the Commission which sought an adjournment to the listed proceedings.. The letter was in the following terms;

“Dear Sir/Madam

Petersen - Unfair dismissal

We write in relation to the above matter with reference to the jurisdictional conference due to occur Friday 22 January at 2pm.

Our clients representative Mr Petherick is currently on annual leave. We had attempted to avoid a delay and as such arranged for Mr De Klerk of our office to attend the conference in Mr Petherick’s absence. Unfortunately, Mr De Klerk is now required to appear in the District Court of Western Australia (Perth). Being that our offices are in Mandurah, Mr De Klerk will not be back in the office in time for the scheduled conference. We request that the conference be rescheduled to next week. We consider it would be of great disadvantage to our client to attend this hearing without representation given the importance of the outcome of the jurisdictional issue in relation to our clients application. Moreover, the Respondent has legal representation and this is likely to be of detriment to our client in being able to fully respond to legal issues raised.

We apologise for the inconvenience to the Commission, however, we made all attempts to avoid same before seeking the adjournment.

Yours faithfully

Petherick Cottrell Lawyers”

[8] Because of the time the above was sent, and having been emailed to the Unfair Dismissal Case Management Team, it was not seen by me until 22 January 2016, the day on which the hearing was listed. Correspondence from the Respondent’s solicitors sent at about the same time, and to the same email address, advised the Respondent did not object to the matter being adjourned.

[9] The Commission as presently constituted, upon being appraised of the request, initially indicated a disinclination to accede to the Applicant’s adjournment request, joined, as it was, by the Respondent. Endeavours were made in the course of the morning of Friday, 22 January 2016 to contact the Applicant’s solicitors, seeking a commitment to attend a listed hearing. No contact with a person in charge of the file from the Applicant’s solicitors was able to be had, and so the Commission determined the matter should be adjourned.

[10] The matter was relisted for hearing on 19 February 2016, and Directions were issued to the parties on 27 January 2016 for the compilation of an Agreed Statement of Facts.

[11] Both parties filed additional witness statements during the course of 18 February 2016, in the absence of a direction to do so. Concerned by the late filing of this material, my Chambers contacted the parties at 9:50 AM AEDT on 19 February 2016 as follows;

“…

Commissioner Wilson advises that the parties are to proceed on the basis that they discuss and agree the parts of the statements that are not to be the subject of oral evidence, and should proceed on the basis that any objections to the admissibility of the statements will be dealt with by Commissioner Wilson at the start of the proceedings today.   

Commissioner Wilson also requests that the parties discuss with each other which witnesses are to be called for oral evidence, and those witnesses must be available for their evidence this afternoon.”

[12] The Applicant, at 11:19 AM AEDT on the morning of the hearing, filed a further two witness statements, again in the absence of a direction to do so.

[13] The matter proceeded to be heard on 19 February 2016. In the course of the hearing, Mr Johan De Klerk, solicitor, of Petherick Cottrell Lawyers, sought and obtained permission to represent Mr Petersen, and Mr Glen Pauline, of Counsel, instructed by Redvers Read solicitors, sought and obtained permission to represent Retic. Permission for representation by a lawyer was granted by me in both cases pursuant to the provisions of s.596(2)(a) and (b) of the Act.

[14] At the time the representation decision was made, in the course of the hearing on 19 February 2016, reservations were expressed by me about granting permission on the ground of the efficiency that the lawyers would bring to the proceeding. This was because I was not entirely satisfied the practitioners had complied with requests made of them when the earlier scheduled hearing had been adjourned, and had filed, at a late stage, additional material upon which they sought to rely.

[15] The hearing commenced with deliberation concerning the admissibility of witness statements filed by the Applicant on 18 February and in the course of the morning of 19 February 2016, less than three hours prior to the listing. The Commission was also appraised, at the start of the hearing, that the Applicant had not arranged for the attendance at the hearing of several of the Applicant’s witnesses for the giving of their evidence. Mr De Klerk later advised that the witnesses could be contacted by telephone.

[16] The parties and their representatives had been earlier informed, on 22 January 2016, that if they sought permission for representation by lawyers for reason of s.596(2)(a) of the Act, which requires a consideration of whether representation would enable the matter to be deal with more efficiently, taking into account the complexity of the matter, then the way that the adjournment had been sought militated against me being so satisfied about the efficiency that lawyers may bring to the matter, but that, as a demonstration of the efficiency they might bring to the matter they would be expected, before the rescheduled hearing, to have narrowed the evidential contest between them.

[17] When that had not happened to my satisfaction at the time the rescheduled hearing commenced, I indicated that I would grant the applications for representation by the lawyers under that section, but with some misgivings, as well as granting the application under s.596(2)(b), which is concerned with whether a person can represent themselves effectively. 1

[18] Despite the issues in contest in the hearing being limited to the high income threshold matters, the hearing was not resolved on 19 February 2016 within the time allocated. At the conclusion of the hearing on 19 February 2016, the following discussion was had with the parties regarding a relisting of the matter. Various dates were mooted by the Commission to the representatives, with Mr De Klerk indicating that he would not be available for a rescheduled hearing before 23 March 2016. After further discussion, the following was said, after which the proceedings were adjourned;

“THE COMMISSIONER: All right. Here is the proposition. We obviously are not talking any longer about Monday 22 February, however I will still be available on Tuesday 1 March. I anticipate, subject to my conciliation skill being available for Monday 29 February, that is the day before the 1st. Failing those two dates, a date in the week of 7 to 11 March and what I do indicate to the parties is that it will be on one of those dates that I've disclosed to you. All right?

MR PAULINE: Thank you, Commissioner.

THE COMMISSIONER: Now, if you care to consider those views from your respective points of view and then put your proposals to me or your views about those proposals on Monday morning by email, then I'll make a determination from there.” 2

[19] On Monday, 22 February 2016, the Respondent’s solicitors advised my Associate “that the Respondent is available on 29 February, 1 March and the week of 7-11 March for the jurisdictional hearing to be adjourned to”. After receiving that correspondence, and having had no advice from them, the Applicant’s solicitors were sent the following email on 22 February 2016 at 6:06 PM AEDT, with it also being copied to the Respondent’s solicitors;

“Dear Mr De Klerk,

Re: U2015/14925- A Petersen v Retic Water Pty Ltd

As directed by Commissioner Wilson at the cessation of the hearing on Friday 19 February 2016, you were to advise the chambers of Commissioner Wilson by close of business today, Monday 22 February 2016 of dates that you, (or another representative of your firm), would be available for the matter to be reconvened.

At this point in time you have not provided any dates for the matter to be relisted.

Could you please respond by return email by 12:00 noon tomorrow.

Kind regards

[Associate to Commissioner Wilson]”

[20] In response to that correspondence, the Applicant’s solicitor responded that the “only date offered, which is suitable for us, is 1 March 2016”.

[21] Since, by that time, 1 March 2016 was no longer an option for the Commission, I determined the matter would be listed for a resumed hearing on Tuesday, 8 March 2016 at 12 PM AEDT/9 AM WST. Arrangements were made for the hearing to be conducted both in Melbourne and Perth. When the notice of listing was issued to the parties it contained the following advice, with the original emphasis;

“PARTIES PLEASE NOTE:

• The above hearing will continue until all evidence and cross examination is complete. It will not be rescheduled for a further hearing.



• Any party seeking an adjournment may seek a Mention hearing.”

[22] No request for a Mention Hearing was made.

[23] On Monday, 7 March 2016 at 8:51 PM the Applicant’s solicitor forwarded correspondence to the Commission seeking the adjournment of the hearing otherwise listed for 8 March 2016. The correspondence stated the following;

“Dear [Associate]

We refer to the notice of listing confirming this matter is listed for hearing on 8 March 2016 and hereby advise that an adjournment is sought for the following reasons:

1. The matter was listed on a day we advised that we were unavailable due to commitments in other courts;

2. We are presently making headway in settlement negotiations. There was been a settlement offer, and counter offer, made between the parties today. To facilitate further negotiation the parties need to exchange relevant information over the next few days and both parties wish to apply for the adjournment given this position. This will save the FWC’s valuable time and prevent unnecessary costs. We expect Ms Hill will confirm this positon later today.

Regards
Trent Petherick
Director
Petherick Cottrell Lawyers”

[24] The Respondent’s solicitors forwarded an email to the Commission on Monday, 7 March 2016 at 9:19 PM advising their consent to the application for adjournment.

[25] Because of the hour at which they were sent, the correspondence was not seen by the Commission until Tuesday, 8 March 2016.

[26] Mr Petherick’s request for an adjournment was not agreed to by the Commission.

[27] The application for an adjournment was refused having had regard to the lateness with which the request had been made; that the matter was a part heard jurisdictional matter; and that the Commission’s expectation generally in relation to jurisdictional matters is that they be dealt with expeditiously, so far as is reasonably practicable. The Commission also took into account that the date of Mr Petersen’s dismissal was 28 October 2015, more than four months previously.

[28] The Commission also took into account as a relevant further factor that the previous request for an adjournment had also been made to the Commission at short notice, and also outside what may be regarded as usual business hours for the tribunal in both Perth and Melbourne. That earlier request was also for a hearing that was otherwise to take place the following day, and is dealt with in more detail later.

[29] Finally, the Commission took into account that any consideration of the adjournment request, whether agreeing or refusing, would have to be communicated prior to 9 AM WST for its notification to be effective, since the request pertained to a matter that was listed for hearing at 9:00 AM WST.

[30] The Commission’s decision to not adjourn the proceedings was advised to the parties by email and by text message to Mr Petherick, the solicitor who made the request. The text message was sent at 9:28 AM AEDT and was responded to by Mr Petherick by further email at 10:31 AM AEDT, which expressed the following views;

“Dear [Associate]

The matter was listed on a date that we advised we were unavailable due to other Court commitments. It is impossible to be in two places at once.

With the greatest of respect, it is extremely unfair to the applicant to not allow the adjournment for the following reasons:

1. Counsel was asked what dates they were available for this part heard matter, and of the dates offered availability was provided;

2. The Commission then inexplicably set the matter down on an unavailable date. This is totally unreasonable and makes the request by the Commission to provide available dates meaningless;

3. Mr Petersen is unable to arrange alterative counsel on such short notice, and it would be unreasonable to expect him to arrange alternative representation of a part-heard matter;

4. The approach of the Commission in this instance prejudices Mr Petersen and is inconsistent with the Commission’s approach to other cases in terms of the granting of an adjournment;

5. There have been settlement discussions yesterday and the exchange of offers, the settlement discussions cannot progress without the exchange of relevant information which cannot occur today;

6. The settlement discussions relate to other claims, including a claim by Mr Petersen’s associated company, and the matter before the Commission will invariably be discontinued if settlement is reached on the other matters;

7. The adjournment is sought by the consent of the parties (reference is made to Ms Hill’s email to the Commission yesterday);

8. To not allow the adjournment would be a miscarriage of justice in the above circumstances.

For the above reasons, we are unable to appear before the Commission today and we request that this email is put before Commissioner Wilson for determination as to whether an adjournment is allowed.

Regards
Trent Petherick
Director
Petherick Cottrell Lawyers”

[31] The Commission noted receipt of the correspondence to the parties and advised the hearing would proceed.

[32] The hearing proceeded through video conference between Melbourne and Perth, with neither the Applicant nor his solicitor in attendance, at which time Mr Pauline, counsel for Retic, made an oral application for dismissal of Mr Petersen’s application for unfair dismissal remedy pursuant to s.399A of the Act. The application was received by the Commission, with it waiving compliance with the Fair Work Commission Rules 2013, to the extent that such was necessary. Subsequent to the hearing, both parties were invited to provide submissions on the subject and did so. The Commission also afforded the opportunity to both to be heard on their submissions, but neither sought to be heard.

[33] Section 399A of the 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.

....
(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.

[34] Determination of this matter requires a finding of whether the Applicant acted unreasonably in the manner envisaged within s.399A.

[35] The particular contention is that Mr Petersen, the Applicant in these proceedings, has unreasonably failed to attend a hearing held by the Commission, in relation to his application. Having given Mr Petersen permission for representation by a lawyer, I am entitled to regard the failure of his lawyers to attend the hearing on Tuesday, 8 March 2016 at 12 PM AEDT/9 AM WST as a failure of the type set out in s.399A(1)(a). In any event, Mr Petersen also did not attend the scheduled hearing.

[36] The fact of a failure by the Applicant to attend a hearing held by the Commission, in relation to his application, is therefore established. Determination of the question does not require determination of a matter involving facts the existence of which is in dispute, and so the Commission is not required to hold a hearing (s.397). Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[37] The question turns to whether the Applicant’s failure to attend was unreasonable.

[38] In considering this question I have had regard to all the matters that are before the Commission, whether in evidence, submissions, or in documentary exchanges with the Commission and its staff.

[39] Germane to the question of reasonableness are two matters. First, I take account of the points argued by Mr Petherick both in his email to the Commission on 8 March 2016, and the later submissions of the Applicant about the s.399A application dismissal proceedings. Second, I take account of the Applicant’s solicitors’ earlier conduct in seeking an adjournment of the hearing notified for 22 January 2016.

[40] In relation to the first issue, the Applicant’s submissions in relation to the s.399A application dismissal proceedings were filed on 21 March 2016. Apart from largely restating the views expressed in Mr Petherick’s email of 8 March 2016, the submission includes the following (noting that it incorrectly refers to correspondence with the Chambers of Commissioner Williams);

“6. The solicitor for the Applicant provided unavailable dates to the Relief Associate for Commissioner Williams on 23 February 2016 outlining the only available date of those offered by Commissioner Williams on 19 February was 1 March.

7. The Relief Associate for Commissioner Williams responded on the same day that 1 March was not available and asked parties to re-advise as to a preferred date. The solicitor for the Applicant stated via email:

“We are unavailable during the week of 7-11 March 2016 due to commitments in other courts every day except Monday – which is a public holiday in WA. We are available 1, 2, 3 and 4 March, then not until 22 and 24 March.””

[41] The submissions put forward that “Mr Trent Petherick is an experienced industrial relations practitioner of Petherick Cottrell Lawyers, however, he was unavailable on 19 February 2016 and so as to avoid delay and disruption to the Commission Mr De Klerk appeared in his absence”. 3 The following submissions are made about the Applicant’s failure to attend the hearing on 8 March 2016;

“8. Despite the unavailable dates provided by solicitor for the Applicant on 24 February the Applicant received a Notice of Listing providing a Hearing date of 8 March 2016. Due to the complexity of the matter, including negotiations as to evidence to be admitted and the examination and cross examination of witnesses and the fact the Respondent was to be represented at the subsequent hearing date the Applicant was unable or unwilling to attend the hearing of 8 March without representation.

9. As a means to overcoming this issue the Applicant and the Respondent sought to engage in without prejudice settlement negotiations. Unfortunately, by 7 March while a number of offers and counter offers had been made no final agreement between the parties was met. As a result, the solicitor for the Applicant contacted the chambers of Commissioner Williams and requested an adjournment of the 8 March hearing date to allow for further negotiations and as the Applicant was unable to have representation at same. This request was refused.” 4

[42] It is clear from the foregoing that the firm’s unavailability for the dates listed for the resumed hearing was something known to it at the time it received the Notice of Listing for 8 March 2016.

[43] The Applicant’s submission also attach a copy of Mr Petherick’s diary for the week of 7 – 13 March 2016, which indicates commitments on Tuesday, 8 March 2016 as follows 5 (with suitable interpolations made for omitted letters);

• 9:00 AM – FWC - Petersen



• 9:30 AM – Directions Hearing – Fed Circuit Court



• 1:30 PM – Perth MC



• 3:30 PM – unidentified matter



• 5:00 PM – unidentified matter

[44] The material provided by Mr Petherick is not in the form of a solicitor’s affidavit and has not identified the matter listed in the Federal Circuit Court, or given any information about when the matter was listed; for what purpose or how long it was scheduled for.

[45] While Mr Petherick has provided information pertaining to his own diary, I take account of the fact that no information has been provided, other than indirectly, about Mr De Klerk’s availability for attendance before the Commission on 8 March 2016, or for any other practitioner of the firm. The submissions have not attached a copy of Mr De Klerk’s diary for 8 March 2016 in the way that they attached Mr Petherick’s.

[46] The Applicant’s submissions on the matters also do not address either why no request was made for a Mention Hearing, as specifically indicated was expected in the Notice of Listing if any party sought an adjournment, or why, other that the possibility of failed settlement discussions, the request for an adjournment was not provided to the Commission until Monday, 7 March 2016 at 8:51 PM AEDT.

[47] The Applicant’s submissions also fail to address why Mr De Klerk or any other practitioner from the firm of Petherick Cottrell Lawyers, or a Counsel in its place, did not attend the Fair Work Commission after it became apparent to them that the request for an adjournment would not be granted, or why Mr Petersen himself did not attend the hearing.

[48] The second matter which I take into account on the question of reasonableness is the Applicant or his solicitors’ earlier conduct in seeking an adjournment of the hearing notified for 22 January 2016. In my view, such earlier conduct is relevant inasmuch as it indicates a pattern of behaviour on the part of the Applicant, or his lawyers, that will inform a decision regarding whether, objectively considered, there has been unreasonable behaviour.

[49] The same practicality arises with the January 2016 adjournment request as with that in March 2016, and which is now the subject of the application to dismiss Mr Petersen’s unfair dismissal application. That is, whether through design or inattention, a request for an adjournment of contested proceedings was made to the Commission with insufficient notice for it to be acted on by the Commission, other than by acquiescence to the request. I also take account of the fact that on both occasions the Respondent’s solicitors indicated their agreement to the adjournment request.

[50] After reviewing the circumstances of both the January and March 2016 adjournment requests I consider that in all likelihood, the Applicant has attempted on two occasions to force an adjournment for reasons that are not known to me, and has been unwilling to place before the Commission considered and reasoned submissions as to why he wanted an adjournment. In short, the Applicant has attempted to game the system.

[51] The second occasion was notified to the Commission at 8:51 PM the night before a resumed hearing that would commence at 9:00 AM in Perth and 12:00 PM in Melbourne. A reasonable applicant would firstly be mindful that the Commission may not grant the application, and secondly be mindful that the practicalities of the late notification may mean that it could not be satisfactorily dealt with in the applicant’s favour before the start of the hearing.

[52] When the second attempt, in March, was refused, the Applicant was unwilling to comply with the Commission’s decision, and has not satisfactorily explained since why he acted as he did.

[53] The combined effect of these matters is unreasonable behaviour.

[54] I have taken into account the Respondent’s agreement to both requests. While their actions, of being a party to last minute adjournment requests, are not fully explained they were prepared to abide by the Commission’s decision and attend as directed.

[55] To the extent that the actions of the Applicant have been those of his lawyers, the Full Bench has confirmed that a lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client, and that a grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will obligates a lawyer to conduct themselves with probity, candour and honesty. 6 Its findings in this regard follow long-standing authority that persons appearing before the Commission have duties of full and frank disclosure of all relevant matters.7

[56] It is also the case that when considering requests for adjournment, it is proper for the Commission to take account of its statutory obligation to perform its functions in a manner that is quick (s.577), and that a respondent is prima facie entitled to have the matter determined as quickly as practicable; with adjournments not to be lightly entertained. Further, it has long been accepted that the onus to make good an adjournment application lies with the applicant for the adjournment, with each application to be made on its own merits and with consideration on the balance of the interests of the parties. 8 It has further been held, and I concur, that applications for adjournments must be made in a timely fashion and provide supporting evidence.9

[57] Those duties and obligations are both well established and serious and must reasonably be known to the solicitors involved, Mr Petherick and Mr De Klerk, if not their client, Mr Petersen. They were aware in January that the first adjournment request was granted with reluctance, when the firm was informed by my Associate that “[t]he lateness of the advice troubles me greatly, notwithstanding that the application is supported by the Respondent. The approach should have been made to the Commission much earlier, and especially in view of the obvious problem that the interstate time differences now cause in responding to the request”.

[58] They were further aware, at the time of the hearing on 19 February 2016, that I had threshold misgivings about granting permission for the representation of the parties by lawyers under the grounds in s.596(2)(a) in which I would be satisfied that such representation would enable the matter to be dealt with more efficiently taking into account its complexity. While such permission was granted, the representatives were reasonably on notice that there were questions about the efficiency they would bring to the mater.

[59] After reviewing all the matters in question in this file, the evidence given so far to the Commission and the submissions made to me, I find that Mr Petersen unreasonably failed to attend a hearing held by the Commission, in relation to his application.

[60] The power to dismiss an application under s.399A for an applicant’s unreasonable failure to attend a Commission hearing is discretionary.

[61] I have given consideration to whether, irrespective of the fact that Mr Petersen’s failure to attend the Commission’s notified hearing on 8 March 2016 was unreasonable, whether I should decline to exercise the discretion to dismiss his application.

[62] There are potentially two reasons why the discretion should not be exercised.

[63] The first is that it is possible the professional failings of Mr Petersen’s solicitors may be unduly and harshly visited upon him if I dismiss his application because of things they have done or not done.

[64] Against that proposition is that Mr Petersen himself did not attend the scheduled hearing, or provide an explanation at any time as to why he could not have attended. While it would likely be said in return that Mr Petersen was represented by solicitors and had no need to attend, such does not entirely resolve the situation. The Commission had very plainly set out on the morning of 8 March 2016 that there would not be an adjournment. Mr Petersen was one of the people who would be required to give evidence. In the face of such situation, with the serious eventuality that the proceedings would continue in his absence, a reasonable party would have attended the Commission, if only to say that their lawyer could not attend and that they needed further time.

[65] Further, in the face of having his matter dismissed after the Respondent’s s.399A application, potentially for the professional failings of his lawyers, it could likely be expected that a reasonable party would also have endeavoured to have put material to the Commission, whether through their representative or not, to explain or otherwise put a further dimension to the defence being mounted against dismissal of their application. There is no material before me in relation to the s.399A matter either in Mr Petersen’s direct voice or addressing his own thinking or situation.

[66] The second reason for consideration of an exercise of discretion in favour of Mr Petersen is that the failure in question might have been an isolated instance of inattention or negligence. Such reason would not be considered by me to be acceptable, in light of the fact that there have been two very similar adjournment events. This cannot be characterised as an isolated instance. If I were to allow this as a reason for the matter to continue, the fact that there have already been two unsatisfactory adjournment circumstances would mean that I could not rule out further instances from the Applicant or his solicitors. In any event, there is no indication of remorse within the Applicant’s submissions. This is not a circumstance in which either Mr Petersen or his solicitors have expressed regret or apologised in their submissions for their inattention or disrespectful or unprofessional behaviour toward the Commission.

[67] Accordingly there are no grounds upon which I would be persuaded to not exercise my discretion to dismiss Mr Petersen’s application. His application will be dismissed.

[68] An order dismissing Alan Petersen’s application for unfair dismissal remedy pursuant to the provisions of s.399A of the Act is issued at the same time as this decision.

COMMISSIONER

 1   Transcript PN 82.

 2   Transcript PN 707–709.

 3   Applicants Outline Of Submissions s399A Dismissing Application, [3].

 4 Ibid– [8]-[9].

 5   Ibid, Attachment A.

 6   Allen v Fluor Construction Services Pty Ltd[2014] FWCFB 174, (2104) 240 IR 254, at [48], with reference to Giannarelli v Wraith (1988) 165 CLR 543 at 556 per Mason J; Council of the Queensland Law Society Inc v Wright [2001] QCA 58; Oram v Derby Gem Pty Ltd (2004) 134 IR 379 at [62].

 7   Re Automotive, Food, Metals, Engineering, Printing and Kindred Industires Union, (1996) AIRC, unreported, Print M9753.

 8   G Sanford and Austin Clothing Company Pty Ltd trading as Gaz Man, (2000) AIRC, unreported, Print S8287, at [31]; see also Boyce v Scott Corporation Limited[2016] FWC 594, at [10].

 9   Meek v Baycorp Pty Ltd[2016] FWC 1291, at [6].

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