Bonita Crichton v Jayco Caravan Manufacturing T/A Jayco Caravans

[2022] FWC 1337

[2022] FWC 1337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bonita Crichton
v

Jayco Caravan Manufacturing T/A Jayco Caravans

(U2022/1818)

COMMISSIONER CIRKOVIC MELBOURNE, 27 MAY 2022

Application for an unfair dismissal remedy – s.399A application to dismiss – application granted

1. On 10 February 2022, Ms Bonita Crichton (the Applicant) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (“FW Act”) for a remedy, alleging she had been unfairly dismissed from her employment.

1. At the Case Management Conference listed on 28 April 2022, Directions were issued for the filling of materials and the date for hearing was set for 16 June 2022. The directions issued to parties on that day required parties to submit:

• a written outline of their position;

• a witness statement from each witness intended to call to give evidence at the hearing; and

• a copy of any document intended to be relied upon.

1. The Applicant was due to file her evidence and submissions on 13 May 2022. As the Applicant did not submit any materials on this day, my Chambers sent correspondence to the Applicant on 17 May 2022 requesting that she submit her materials as soon as possible and seek leave for the late lodgement of her materials. The Applicant was also advised that failure to comply with directions was likely to disadvantage her case and could lead to the matter being dismissed.

1. No material was filed by the Applicant to support her application. In fact, there has been no contact from the Applicant since the case management conference on 28 April 2022.

1. On 24 May 2022 the Respondent filed a Form F1 – application pursuant to s.399A of the FW Act to dismiss the Applicant’s application for unfair dismissal remedy. A copy of the application was served on the Applicant and directions were made for the Applicant to provide a written submission by 12:00pm on 27 May 2022. The Applicant did not respond to this email and did not provide any written submissions.

1. Section 399A of the FW Act provides:

“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.”

1. In Lockyear v Graeme Cox [2021] FWCFB 875 at [57] the Full Bench found:

“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5.   A conference or hearing may be required where there are facts in disputehttps:// - P326_31692 and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”

1. I have applied the reasoning of the Full Bench in coming to my decision.

1. Section 399A(2) is satisfied by the Respondent’s application of 24 May 2022. Similarly, s.399A(1)(b) is satisfied by the Applicant’s failure to comply with the directions of 28 April 2022 and the subsequent direction of 24 May 2022. The jurisdictional pre-requisites are met for the Applicant’s application to be dismissed[1] and it is a matter of discretion whether I do so.

1. Section 593 of the Act provides that the Commission is not required to hold a hearing, except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to law before they have had their ‘day in court’.[2]

1. The Applicant was placed on notice in the directions of 28 April 2022 that “failure to comply is likely to disadvantage the party concerned” and in the s.399A directions issued on 24 May 2022, that “if you don’t provide your reasons than 12:00pm on Friday 27 May 2022, your application could be dismissed without further notice.”

1. The Applicant did not respond to the non-compliance correspondence of 17 May 2022 nor the s.399 directions issued on 24 May 2022.

1. The Respondent is entitled to ask for finality. The Applicant has not taken up the opportunity to prosecute her case. In the circumstances, I see no utility in allowing the Applicant’s claim to continue, and I therefore grant the Respondent’s application under s.399A.

1. The Applicant’s application is therefore dismissed.

COMMISSIONER

[1] Lockyear v Graeme Cox [2021] FWCFB 875 at [55].

[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].

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