Bonus Ryder v Safety Scaffolding Pty Ltd

[2021] FWC 4737

[2021] FWC 4737

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bonus Ryder
v
Safety Scaffolding Pty Ltd
(U2021/5310)

DEPUTY PRESIDENT MASSON MELBOURNE, 5 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 17 June 2021, Mr Bonus Ryder (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Safety Scaffolding Pty Ltd (the Respondent) was unfair. The Respondent lodged a Form F3 contending the dismissal was a case of genuine redundancy.

[2] The matter was initially listed in the Fair Work Commission (the Commission) for a staff conciliation conference at 9:15 am on 7 July 2021. Ahead of the conciliation on 6 July 2021, the Applicant’s Representative provided the Commission with an updated telephone contact number for the Applicant. The Commission received a further email from the Applicant’s Representative at 8:58 am on 7 July 2021 advising they were unable to contact the Applicant prior to the conciliation. As the Applicant failed to appear, despite several attempts made by his representative to contact him, the conciliation did not proceed. On the basis that they were unable to contact their client, the Applicant’s Representative advised the Commission via email on 9 July 2021 that they would be ceasing to act for the Applicant and filed a Form F54.

[3] The matter was allocated to my Chambers on 21 July 2021 for determination. Following allocation of the matter, directions were issued to the parties by my chambers on 21 July 2021 setting down a timetable for the filing of material by both parties in relation to the jurisdictional objection raised and merits of the application. The matter was listed for hearing on 20 September 2021 to deal with the Respondent’s jurisdictional objection and the merits of the application.

[4] In the directions issued by my chambers on 21 July 2021 the parties were also advised of the listing of the matter for a Conference/Mention to be conducted at 10.00 am on 26 July 2021, and that they were each required to confirm appearances and provide telephone contact numbers by the close of business Friday 23 July 2021 for the purpose of participating in the Conference/Mention. The Applicant failed to provide his telephone contact details.

[5] The Conference/Mention proceeded on 26 July 2021 at which the Respondent attended. My Associate attempted to make contact with the Applicant several times on the morning of the Conference/Mention on the number listed on the Form F2 as well as the updated number provided by the Applicant’s former Representative and as listed in the Commission’s Case Management System (CMS). A voice message was left by my Associate advising the Applicant of the Conference/Mention and requesting a call back. The Applicant did not answer or return the calls made by my Associate.

[6] On 30 July 2021 a written application pursuant to s.399A was made by the Respondent and received by my chambers, requesting that the application be dismissed by reason of the failure of the Applicant to attend two conferences conducted by the Commission.

[7] Correspondence was sent by my chambers on 30 July 2021 to the Applicant advising that an application had been made by the Respondent for his application to be dismissed pursuant to s.399A of the Act. The Applicant was invited to provide submissions by close of business 4 August 2021 as to why he had failed to attend the two listed conferences and why his application should not be dismissed. The Applicant was also advised in the correspondence that should he fail to file any submissions or other material, the s.399A application made by the Respondent may be determined on the material presently before the Commission. No submissions were filed by the Applicant in response to the correspondence from the Commission sent to him on 30 July 2021.

[8] 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.”

[9] 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 his application for an unfair dismissal remedy by 4 August 2021, I will determine the application on the papers.

[10] I am satisfied that the Applicant has unreasonably failed to attend a Conference listed for 7 July 2021 and a further Conference/Mention listed for 26 July 2021. He has not provided any evidence or reasons for such non-attendance, nor has he responded to multiple telephone calls and various email communication from my chambers.

[11] In the circumstances I have decided to grant the Respondent’s application under s.399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

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