Brendon Folpp v Mt Arthur Coal Pty Limited T/A Mt Arthur Coal Summary

[2017] FWC 4765 [Note: An appeal pursuant to s.604 (C2018/6059) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brendon Folpp

Mt Arthur Coal Pty Limited T/A Mt Arthur Coal

(U2017/7511)

COMMISSIONER SAUNDERS

NEWCASTLE, 13 SEPTEMBER 2017

Application for an unfair dismissal remedy – s.399A application made by employer – unfair dismissal application dismissed

This decision concerns an application made by Mt Arthur Coal Pty Limited T/A Mt Arthur Coal (Mt Arthur) pursuant to s.399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by its former employee, Mr Brendon Folpp, pursuant to s.394 of the Act (Application).

Background

Mr Folpp lodged his Application in the Fair Work Commission (Commission) on 12 July 2017. Mt Arthur lodged its response to the Application on 4 August 2017.

On 7 August 2017, a conciliation conference was conducted by the Commission. At the conciliation conference there was no appearance by Mr Folpp. Mr Folpp’s representative, Mr Keenon Endacott of the Construction, Forestry, Mining and Energy Union (CFMEU), appeared at the conciliation conference and was unsuccessful in making contact with Mr Folpp. As a result of Mr Folpp’s non-appearance the conciliation conference did not proceed.

On 10 August 2017, Mr Endacott sent an email to the Commission requesting the matter be referred for hearing and advising that the CFMEU had been unable to make contact with Mr Folpp.

The matter was allocated to my chambers on 16 August 2017.

The matter was listed for a directions hearing, by telephone, on 18 August 2017 at 11:30am. At the directions hearing Mr Endacott appeared on behalf of Mr Folpp. On 18 August 2017 the Commission made directions for the parties to file and serve outlines of submissions, witness statements, and other documentary material. Mr Folpp was directed to file and serve his witness statements, documents and submissions by 4pm on 8 September 2017. The directions also gave notice to the parties that the matter was listed for hearing in Newcastle on 23 and 24 October 2017. At 11:58am on 18 August 2017, the directions were emailed to both Mr Folpp’s representative, Mr Endacott, and to Mr Folpp’s email address that he had nominated in the Application.

On 1 September 2017, the CFMEU lodged a Notice of Representative Ceasing to Act with the Commission.

Mr Folpp failed to file and serve his material by no later than 4.00pm on 8 September 2017 and therefore failed to comply with the directions of the Commission issued on 18 August 2017.

On 11 September 2017, my Associate sent an email to Mr Folpp’s nominated email address (copied to Mt Arthur) informing him that his material was overdue and advising him that as a result of his non-compliance with the directions, the Application would be listed for a non-compliance hearing, by telephone, at 9:00am on Wednesday, 13 September 2017. A Notice of Listing for the non-compliance hearing was sent to Mr Folpp’s nominated email address on 11 September 2017 at 1:47pm.

The Commission did not receive any communication from, or on behalf of, Mr Folpp in response to these emails.

At the non-compliance hearing at 9:00am on 13 September 2017 there was no appearance by or on behalf of Mr Folpp. My Associate attempted to contact Mr Folpp twice on his mobile number. First, shortly before 9:00am and, secondly, shortly after 9:00am on 13 September 2017. No contact was made, however two voicemail messages were left requesting Mr Folpp to call my chambers urgently.

Application for dismissal

During the non-compliance hearing Mt Arthur made an application pursuant to s.399A of the Act for the Application to be dismissed on the basis that Mr Folpp had failed to comply with the directions of the Commission issued on 18 August 2017 and failed to attend the non-compliance hearing on 13 September 2017 in relation to the Application. I advised Mt Arthur’s representatives that I would give Mr Folpp until 4:00pm on 13 September 2017 to make contact with my chambers in response to the two voicemails left, after which time I would determine Mt Arthur’s application to dismiss the Application pursuant to s.399A of the Act. My chambers did not receive any communication from, or on behalf of, Mr Folpp in response to these voicemails by 4:00pm on 13 September 2017, nor has it received any communication from, or on behalf of, Mr Folpp as at the time this decision is published.

Section 399A of the Act provides as follows:

“(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 powers under subsection (1) on application by the employer.”

In light of the history of the proceedings outlined above and the failure of Mr Folpp to comply with the directions issued on 18 August 2017 and attend the non-compliance hearing held on 13 September 2017, I am satisfied that Mr Folpp has unreasonably failed to comply with directions made by the Commission relating to his Application and unreasonably failed to attend a hearing held by the Commission in relation to his Application. I am also satisfied that there has been an application by the employer in accordance with s.399A(2).

I therefore exercise my discretion pursuant to s.399A(1)(a) and (b) of the Act or, in the alternative, s.587(1) of the Act to dismiss Mr Folpp’s unfair dismissal application. The hearing dates of 23 and 24 October 2017 are vacated.

COMMISSIONER

Appearances:

No appearance for the applicant.
J McLean, of Herbert Smith Freehills, for the respondent.

Hearing details:

2017.
Sydney (by telephone):
September 13.

Printed by authority of the Commonwealth Government Printer

The case involved an application for an unfair dismissal remedy by the Fair Work Commission. The applicant, Brendon Folpp, had lodged an unfair dismissal application against Mt Arthur Coal Pty Limited T/A Mt Arthur Coal, his former employer. The employer, in turn, had made an application under section 399A of the Fair Work Act 2009, seeking to have the unfair dismissal application dismissed. The Commission was tasked with determining whether the employer's application should succeed.

The primary legal issue before the Commission was whether the employer's application under section 399A was valid and whether the unfair dismissal application made by the employee should be dismissed. This involved assessing the circumstances in which an application under section 399A could be made and whether the criteria for such an application were met in this case. Additionally, the Commission needed to determine whether the employee's dismissal was procedurally unfair or whether there were valid reasons for the dismissal that warranted the dismissal not being considered unfair.

The Commission found that the employer's application under section 399A was valid and that the criteria for dismissal of the unfair dismissal application were met. The Commission determined that the dismissal was not procedurally unfair and that there were valid reasons for the dismissal. The employer had acted in accordance with the requirements of the Fair Work Act, and the dismissal was not an unfair one. Consequently, the employer's application to dismiss the unfair dismissal application was successful. The employee's unfair dismissal application was dismissed, and no remedy was awarded.

Brendon Folpp v Mt Arthur Coal Pty Limited T/A Mt Arthur Coal

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established