Ben Wright v David John Hall
[2022] FWC 327
| [2022] FWC 327 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ben Wright
v
David John Hall
(U2021/8145)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 16 FEBRUARY 2022 |
Application for an unfair dismissal remedy – s.399A application to dismiss – application dismissed.
On 7 September 2021, Mr Ben Wright, the applicant, applied under s 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy, alleging that he had been unfairly dismissed from his employment with David John Hall, the respondent. The respondent raised a jurisdictional objection to the application contending the applicant abandoned his employment and was not dismissed within the meaning of s 386(1) of the Act.
The application was listed for a case management conference on 19 October 2021 for the purposes of readying the application for a hearing. Prior to the conference, my Associate called the applicant three times, the applicant did not respond and did not attend the conference. In light of the applicant’s failure to attend, the case management conference did not proceed, and I issued written directions for the filing of materials dealing with the respondent’s jurisdictional objection.
Amongst the directions, the applicant was required to file an outline of submissions, any statement(s) of evidence and any documentary material(s) addressing the question of whether there was a dismissal within s 386 of the Act by 5:00pm on Wednesday, 3 November 2021, and the matter was listed for hearing initially on Monday, 29 November 2021. On 4 November 2021, the hearing was rescheduled by my Chambers to Wednesday, 1 December 2021. The applicant did not file any materials in accordance with the directions. No request to vary the directions was received from the applicant and no explanation for the failure to comply with the directions was provided.
My associate called the applicant to discuss his failure to comply with directions and request that material be filed on 25 and 29 November 2021. On each occasion the applicant did not answer his phone and my Associate left a voicemail message requesting the applicant to call my Chambers. On 30 November 2021, my Associate again called the applicant to discuss the outstanding material, my Associate left a voicemail message requesting the applicant to call chambers to discuss his application including whether he wishes to proceed with it. No telephone call was received in response to these messages.
On 30 November 2021, the respondent made an application pursuant to s 399A of the Act requesting that, in the circumstances of the applicant’s failure to comply with the directions or attend conferences, the application be dismissed. The s 399A application was served on the applicant by the respondent on 30 November 2021 by email. Later that day, my Associate sent an email to the parties indicating that the respondent’s application under s 399A would be dealt with at the hearing scheduled for 1 December 2021.
On the morning of the hearing on 1 December 2021 my Associate attempted to contact the applicant three times. The applicant did not answer and did not attend the hearing. The hearing proceeded and directions for the provision of material responding to the respondent’s s 399A application were made and issued in writing to the parties later that day.
The directions required the applicant to file an outline of submissions setting out the basis on which his application for an unfair dismissal remedy should not be dismissed under s.399A of the Act and an explanation for his failure to attend the case management conference and hearing and his failure to comply with directions by no later than 5:00pm on Wednesday, 8 December 2021. In the event the applicant complied with this direction, the respondent was directed to file any submissions in reply by 5pm on 15 December 2021. In the event the applicant failed to comply with the direction, the directions provided that I would determine the respondent’s s 399A application on the papers.
The email sent to parties on 1 December 2021 attaching my written directions also stated that, if the applicant no longer wished to proceed with his application for an unfair dismissal remedy, he could withdraw his application by telling us by reply email. The applicant did not reply to this email and did not file any material in accordance with the directions.
Section 399A provides the Commission with a discretion to dismiss an unfair dismissal remedy application on application by an employer, in this case the respondent, in circumstances where the Commission is satisfied that an applicant has unreasonably failed to attend a conference conducted by the Commission, has unreasonably failed to attend a hearing held by the Commission or has unreasonably failed to comply with a direction or order of the Commission.
As the chronology outlined above indicates, there have been multiple failures on the part of the applicant to comply with directions. The applicant did not file any material in accordance with the directions issued on 19 October 2021 dealing with the respondent’s jurisdictional objection. The applicant also failed to comply with my directions issued on 1 December 20 in relation to the respondent’s s 399A application. Those failures have occurred in circumstances where there no explanation for the failures has been given, despite numerous attempts by my Associate to contact the applicant, and no application for a variation of the directions has been made. I am satisfied that the failures to comply with my directions were unreasonable.
The applicant also failed to attend the case management conference on 19 October 2021 and the hearing on 1 December 2021. The attempts to contact the applicant prior to each listing were unsuccessful. There has been no application for an adjournment and no explanation for the failure of the applicant to attend either the conference or hearing. In those circumstances, I am also satisfied that the applicant has unreasonably failed to attend both a conference and a hearing of the Commission.
Although the power to dismiss an application under s 399A of the Act should be exercised with caution, it seems to me that this is a clear case where the power should be exercised. The respondent has been put to the task of preparing its case and attending a hearing before the Commission without the benefit of any material other than the bare application filed to assist it to answer the application. The applicant has failed to participate in both a scheduled conference and hearing and has done so in circumstances that are unreasonable.
I am satisfied that the applicant has failed unreasonably to attend a scheduled conference and hearing and has failed unreasonably to comply with directions of the Commission. The power to dismiss is therefore enlivened.
I am not persuaded that there are any discretionary considerations which would weigh against the exercise of my discretion in favour of the respondent and in the circumstances set out above I propose to exercise that discretion in its favour and consequently the application is dismissed.
Order
I order that the application lodged by Mr Wright on 7 September 2021 be dismissed under s 399A of the Act.
DEPUTY PRESIDENT
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