Brett Boesen v Traffic Logistics Pty Ltd

[2017] FWC 5832

[2017] FWC 5832

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Boesen
v
Traffic Logistics Pty Ltd
(U2017/10505)

COMMISSIONER SAUNDERS NEWCASTLE, 8 NOVEMBER 2017

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

[1] This decision concerns an application made by Traffic Logistics Pty Ltd 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 Brett Boesen, pursuant to s.394 of the Act (Application).

Background

[2] Mr Boesen lodged his Application in the Fair Work Commission (Commission) on 28 September 2017. The application form lodged was incomplete because the section titled ‘The Respondent’ had not been completed by Mr Boesen. A completed application form was lodged by Mr Boesen on 3 October 2017. Traffic Logistics lodged its response to the Application on 17 October 2017.

[3] On 25 October 2017, a conciliation conference was conducted by the Commission. At the conciliation conference there was no appearance by Mr Boesen. When the Commission made contact with Mr Boesen he advised that he could not participate in the conciliation as he was at work, however he still wanted to go ahead with his claim. As a result of Mr Boesen’s non-appearance the conciliation conference did not proceed.

[4] The matter was allocated to my chambers on 2 November 2017.

[5] The matter was listed for a directions hearing, by telephone, at 9:00am on 6 November 2017. A Notice of Listing was sent to Mr Boesen’s nominated email address on 2 November 2017.

[6] At the directions hearing on 6 November 2017 there was no appearance by or on behalf of Mr Boesen. Shortly after 9:00am my Associate attempted to contact Mr Boesen on the mobile number and home number listed in the Application. A male answered the mobile number and when asked “Hi, is this Brett Boesen?” he answered “No you have the wrong number”. A voicemail was left on the home number’s answering machine requesting Mr Boesen contact my chambers.

[7] At 9:36am on 6 November 2017, my Associate sent an email in the following terms to Mr Boesen and Traffic Logistics:

“Dear Mr Boesen and Mr Maguire,

This matter was listed for directions by telephone before Commissioner Saunders at 9am this morning. There was no appearance by or on behalf of Mr Boesen.

The Commissioner has decided to list this matter again by telephone at 9am on Wednesday, 8 November 2017. It is important that both parties participate in that hearing by telephone. In the event that Mr Boesen does not participate in the hearing by telephone at 9am on Wednesday, 8 November 2017, Mr Boesen’s unfair dismissal application may be dismissed without further notice to him.”

[8] The matter was listed for a second directions hearing, by telephone, at 9:00am on 8 November 2017. A Notice of Listing was sent to Mr Boesen’s nominated email address at 9:40am on 6 November 2017.

[9] At the directions hearing at 9:00am on 8 November 2017 there was no appearance by or on behalf of Mr Boesen. My Associate attempted to contact Mr Boesen on his mobile number shortly after 9:00am. No contact was made, however a voicemail message was left requesting Mr Boesen to call my chambers urgently.

[10] My chambers did not receive any communication from, or on behalf of, Mr Boesen in response to the voicemail left by my Associate, nor has it received any communication from, or on behalf of, Mr Boesen as at the time this decision is published.

Application for dismissal

[11] During the directions hearing on 8 November 2017 Traffic Logistics made an application pursuant to s.399A of the Act for the Application to be dismissed on the basis that Mr Boesen had failed to attend the directions hearings on 6 and 8 November 2017 in relation to the Application.

[12] 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.”

[13] The discretion of the Commission to dismiss an application under s.399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances. 1

[14] In light of the history of the proceedings outlined above and the failure of Mr Boesen to attend the directions hearings held on 6 and 8 November 2017 in this matter without explanation, I am satisfied that Mr Boesen has 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).

[15] I therefore exercise my discretion pursuant to s.399A(1)(a) of the Act or, in the alternative, s.587(1) of the Act to dismiss Mr Boesen’s unfair dismissal application.

COMMISSIONER

Appearances:

No appearance for the applicant.

Mr T Maguire for the respondent.

Hearing details:

2017.

Newcastle (by telephone):

November 8.

 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]

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