DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Hicks
v
Hargrave Auto Body Repairs Pty Ltd
(U2018/6656)

DEPUTY PRESIDENT BULL

SYDNEY, 26 SEPTEMBER 2018

Application for an unfair dismissal remedy - s.399A – application dismissed. Applicant’s failure to prosecute application.

[1] On 28 June 2018, Mr Bradley Hicks (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging she had been unfairly dismissed by Hargrave Motor Repairs (the employer). The employer response names the correct employer as Hargrave Auto Body Repairs Pty Ltd. Pursuant to s.586 of the Fair Work Act 2009 (the Act) the application is amended to the extent that the true legal employer of the applicant is correctly identified.

Background

[2] The matter was listed before a conciliator for telephone conciliation on 26 July 2018, however on that date the applicant was unable to be contacted. A voicemail was left by the conciliator via the applicant’s nominated phone number requesting that the he contact the Commission regarding his absence at the conciliation conference. No response was received from the applicant and the application was allocated to my chambers.

[3] On 7 August 2018, the matter was listed for a directions teleconference scheduled to take place on 14 August 2018.

[4] Chambers sent the notice of listing via express post to the address stated on the applicant’s F2, as the applicant had not provided an email address.

[5] The teleconference of 14 August 2018, was subsequently cancelled, as the respondent was on leave at this time. The matter was relisted for hearing/conference on 5 October 2018. The notice of listing, along with directions was again sent via express registered post to the applicant and via email to the respondent.

[6] On 3 September 2018, my Chambers received a telephone call from the respondent, pointing out that the applicant had not filed submissions as directed. The respondent advised that they had tried to contact the applicant without success.

[7] On 12 September 2018, my Chambers left a voicemail for failure to comply with directions as issued.

[8] On 13 September 2018, the respondent lodged an application pursuant to s.399A of the Act that the matter be dismissed on the basis that the applicant had failed to attend the conciliation conference conducted by the Commission and failed to comply with directions.

[9] The Commission made further attempts to contact the applicant via telephone however all attempts were unsuccessful. The applicant did not reply to the voicemails left advising that his application may be dismissed if he did not respond.

[10] As at the date of this decision the applicant has not made contact with the Commission despite being requested to do so on a number of occasions. The applicant has been advised that his failure to prosecute his application may lead to its dismissal without further notice.

Legislation

[11] 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

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.”

Decision

[12] I am satisfied that the applicant has unreasonably failed to attend the conciliation conference. I am satisfied the applicant has unreasonably failed respond to the Commission’s correspondence as directed. No explanation has been provided by the applicant for his lack of response to Commission correspondence. In accordance with s.399A of the Act, the application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Bradley Hicks brought a claim against Hargrave Auto Body Repairs Pty Ltd in the Fair Work Commission, seeking relief under section 399A for an unfair dismissal. The Commission dismissed his application for a remedy due to his failure to prosecute the application. Hicks appealed the decision to the Federal Circuit Court of Australia. The appeal court considered whether the Fair Work Commission had erred in dismissing the application and if the dismissal was justified.

The primary legal issue was whether the Fair Work Commission was correct in dismissing Hicks' application due to his failure to prosecute. The appeal court examined whether the dismissal was appropriate under the circumstances and if the Commission had correctly applied the relevant principles. Specifically, the court needed to determine if the Commission was justified in concluding that Hicks had not made a genuine attempt to prosecute his application, and if the dismissal was a proportionate response to his conduct.

The Federal Circuit Court of Australia upheld the Fair Work Commission's decision, finding that the dismissal was appropriate. The court concluded that Hicks had not demonstrated a genuine attempt to prosecute his application, as he had failed to take necessary steps to progress the case despite multiple opportunities and warnings. The court held that the Commission was correct to dismiss the application due to Hicks' lack of diligence, and that the dismissal was proportionate to the circumstances. The appeal was dismissed, and the original decision of the Fair Work Commission was affirmed.

In light of the above, the Federal Circuit Court of Australia dismissed the appeal and affirmed the decision of the Fair Work Commission. The application for an unfair dismissal remedy was dismissed, and no further orders were made.

Bradley Hicks v Hargrave Auto Body Repairs Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established