Anthony Woulleman v Transfield Services (Australia) Pty Ltd

[2015] FWC 3881

[2015] FWC 3881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Woulleman
v
Transfield Services (Australia) Pty Ltd
(U2015/3017)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 10 JUNE 2015

Application for relief from unfair dismissal - application dismissed - section 399A application.

[1] This decision deals with an application to dismiss an unfair dismissal application pursuant to s.399A of the Fair Work Act 2009 (the FW Act). On 12 February 2015 Mr Woulleman lodged an application pursuant to s.394 of the FW Act, through which he sought relief with respect to the termination of his employment by Transfield Services (Australia) Pty Ltd (Transfield).

[2] Transfield sought that the application be dismissed on the basis that Mr Woulleman failed to attend any proceedings requested by the Commission and failed to respond to directions issued on 21 May 2015.

[3] The application was listed for conciliation on two separate occasions. On both of these occasions Mr Woulleman neither attended, and nor did he respond to Fair Work Commission (FWC) email contact of 20 April 2015. This advice also confirmed that the matter would be referred to a Member of the Commission for hearing.

[4] The application was referred to me on 24 April 2015 and listed for telephone directions on 19 May 2015. Mr Woulleman was sent advice of this conference and was provided with a reminder for it. Notwithstanding this, he did not participate in this conference. Mr Gosling of Transfield participated in the conference. I advised at this conference that directions would be issued which provided Mr Woulleman an opportunity to explain his non-participation in FWC proceedings, as follows:

“[3] Mr Woulleman is DIRECTED to provide to the Commission, a statutory declaration, supported by documented material which confirms his inability or incapacity to participate in any of the conferences arranged relative to his application. That declaration is to be provided to the Fair Work Commission by close of business 5 June 2015. The Fair Work Commission contact details for this purpose are:

....

[4] A copy of this material is to be provided to Mr Graham Gosling of Transfield Services (Australia) Pty Ltd at Level 3, 509 St Kilda Road, Melbourne, Victoria 3004, or [email protected] by the same date.

[5] I will consider any information provided by Mr Woulleman consistent with this direction and may invite Transfield Services (Australia) Pty Ltd to respond to that information.

[6] Absent the provision of information by Mr Woulleman consistent with this direction, I will dismiss his application pursuant to s.399A on, or shortly after, 5 June 2015.”

[5] On 19 May 2015, and following Mr Woulleman’s non compliance with the directions, Transfield lodged at application to dismiss the matter under s.399A.

[6] Section 399A states:

“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.”

[7] On the information before me, I am satisfied that Mr Woulleman did not participate in any of the proceedings before the Commission listed on 11 March, 31 March and 19 May 2015. Mr Woulleman has not complied with my directions in relation to the s.399A application. Accordingly, I am satisfied that it is appropriate that his s.394 application should be dismissed and an Order (PR568169) will be issued to this effect.

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<Price code A, PR568168>