Alexander Jones v Hastings Diesel Service

[2020] FWC 3731

[2020] FWC 3731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexander Jones
v
Hastings Diesel Service
(U2020/7308)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 16 JULY 2020

Application for an unfair dismissal remedy – s 399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by Mr Matthew White T/A Hastings Diesel Service (Respondent) pursuant to s 399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by its former employee, Mr Alexander Jones, pursuant to s 394 of the Act (Application).

Background

[2] Mr Jones lodged his Application in the Fair Work Commission (Commission) on 26 May 2020. In that Application, Mr Jones contends that he was unfairly dismissed on 18 May 2020.

[3] The matter was listed for a directions hearing, by telephone, on 3 July 2020. There was no appearance by or on behalf of Mr Jones at that directions hearing.

[4] An email in the following terms was sent to Mr Jones and Mr White after the directions hearing on 3 July 2020:

“Dear parties

I refer to the listing of this matter for directions, by telephone, before Deputy President Saunders at 1pm today.

There was no appearance by or on behalf of Mr Jones at the directions hearing. Mr White appeared for the respondent.

Deputy President Saunders has adjourned the directions hearing, by telephone, until 8:30am on 16 July 2020. If there is no appearance by or on behalf of Mr Jones at that directions hearing, then Mr Jones’ unfair dismissal application may be dismissed without further notice to him.

5 minutes before the scheduled time, parties are required to join the call by clicking this link:

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Or alternatively, parties can dial into the call: [phone]

Then dial Conference ID: 245 507 371#

If there are any difficulties joining the call, please contact Chambers on 02 9308 1827.”

[5] There was no response to the email sent to Mr Jones on 3 July 2020.

[6] There was no appearance by or on behalf of Mr Jones at the directions hearing on 16 July 2020. My Associate attempted, without success, to contact Mr Jones at the commencement of the directions hearing on 16 July 2020.

Application for dismissal

[7] During the directions hearing on 16 July 2020, the Respondent made an application pursuant to s 399A of the Act for the Application to be dismissed on the basis that Mr Jones had failed to attend the directions hearing on 3 July 2020 and the directions hearing on 16 July 2020.

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

“(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 powers under subsection (1) on application by the employer.”

[9] The discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant’s conduct and whether such conduct was unreasonable in the circumstances. 1

[10] In light of the history of the proceedings outlined above, I am satisfied that:

•  Mr Jones has unreasonably failed to attend two hearings held by the Commission (on 3 and 16 July 2020) in relation to his Application; and

•  there has been an application by the employer in accordance with s 399A(2).

[11] In the circumstances, I exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Mr Jones’s unfair dismissal Application.

DEPUTY PRESIDENT

Appearances:

Mr White appeared for the respondent

Hearing details:

2020.
Newcastle:
16 July.

Printed by authority of the Commonwealth Government Printer

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 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]