Brett Dalton-Downward v Hardwicks Meatworks Pty Ltd
[2023] FWC 540
•6 MARCH 2023
| [2023] FWC 540 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brett Dalton-Downward
v
Hardwicks Meatworks Pty Ltd
(U2022/11178)
| COMMISSIONER CIRKOVIC | MELBOURNE, 6 MARCH 2023 |
Application for an unfair dismissal remedy – s.399A application to dismiss – application granted
On 22 November 2022, Mr Brett Dalton-Downward (the Applicant) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with Hardwicks Meatworks Pty Ltd (the Respondent). In his Form F2, the Applicant provided a mobile number and an email address, both of which have been used by the Commission throughout the conduct of this matter.
The matter was first listed for conciliation before a staff conciliator on 22 December 2022. The Applicant was represented at the conciliation conference but could not himself participate due to work commitments and accordingly the conciliation did not proceed.
On 29 December 2022, the file was allocated to my chambers.
On 30 December 2022, my Chambers issued Directions for the filing of submissions and evidence in the matter. The matter was originally listed for hearing via Microsoft Teams on 1 March 2023.
On 30 December 2022, 5 January 2023, and 13 January 2023, my Chambers made three phone calls to the Applicant, requesting confirmation that he wished to continue his application. The first and second calls went unanswered, and voice messages were left requesting that the Applicant contact Chambers. The third call was answered by the Applicant, who confirmed that he wished to continue his application and that he had received the Directions and Notice of Listing issued on 30 December 2022.
At approximately 1:42PM on the same day, my Chambers sent an email to the parties which directed them to attend a Member Assisted Conciliation (MAC) before Deputy President Clancy. The MAC was subsequently listed before the Deputy President on Wednesday 15 February 2023.
On 19 January 2023, the Applicant filed material in support of his unfair dismissal application. The material consisted of:
A statement of the Applicant dated 18 January 2023;
A termination letter dated 15 November 2022; and
An employment separation certificate.
On 23 January 2023, my Chambers sent an email to the Applicant (the 23 January email), noting that while he had filed some material, he had not provided any submissions addressing the criteria in s.387 of the Act as to why his dismissal was unfair. The Applicant was requested to provide an outline of his submissions as soon as practicable.
On 6 February 2023, my Chambers issued a Notice of Listing to the parties which amended the hearing date from 1 March 2023 to 2 March 2023.
On 15 February 2023, the Applicant did not attend the MAC before Deputy President Clancy. Multiple calls were made to the Applicant on his mobile number but went unanswered, and voicemails were left advising that the MAC was proceeding and requesting his attendance.
On 16 February 2023, my Chambers sent a further email to the Applicant (the 16 February email), noting that he had failed to attend the MAC, and that the Commission had neither received an explanation for his non-attendance, nor a response to the 23 January email requesting him to provide his submissions. The Applicant was directed to provide a response, by no later than 4:00PM Tuesday 21 February 2023, indicating whether he intended to proceed with his unfair dismissal application, explaining why he did not attend the MAC, and providing submissions addressing the criteria in s.387 of the Act was to why his dismissal was unfair. No response was received.
The matter was then listed for non-compliance hearing at 9:30AM on 1 March 2023. A Notice of Listing was issued to the parties on 23 February 2023.
At approximately 10:06 AM on 24 February 2023, the Applicant’s representative filed a Form F54 – Notice of Representative Ceasing to Act, confirming that they no longer acted for the Applicant.
At approximately 10:30AM on 24 February 2023, my Chambers attempted to contact the Applicant on his mobile number. The call went unanswered, and a voice message was left advising:
The Applicant had not complied with a direction issued on 16 February 2023;
The matter was listed for a non-compliance hearing on Wednesday 1 March 2023;
If he did not attend the non-compliance hearing there was a chance his matter would be dismissed; and
The Applicant was requested to call Chambers back to confirm his attendance.
At approximately 11:35AM on 27 February 2023, my Chambers made a further phone call to the Applicant. The call went unanswered, and a voice message was left advising that the Applicant had not complied with a direction, that the matter was listed for non-compliance hearing on 1 March 2023, that if he did not attend there was a chance his matter would be dismissed. The Applicant was requested to call back as soon as possible to confirm his attendance.
At approximately 9:05AM on 28 February 2023, my Chambers sent an email to the Applicant, attaching the Notice of Listing issued on 23 February 2023 and noting:
The matter was listed for non-compliance hearing at 9:30AM Wednesday 1 March 2023;
The Applicant had not confirmed his attendance and was requested to do so as soon as practicable; and
If he did not attend the non-compliance hearing there was a chance his matter may be dismissed;
At approximately 4:50PM on 28 February 2023, my Chambers made two further phone calls to the Applicant, both of which went unanswered. Two voicemails were left confirming the time and date of the non-compliance hearing, advising that if he did not attend there was a risk that his matter would be dismissed, and requesting that he call back to confirm his attendance as soon as possible.
No response to the phone calls and email were received.
On 1 March 2023, the non-compliance hearing proceeded. The Applicant did not attend via the Microsoft Teams link provided to the parties and was unresponsive on his mobile phone, despite three attempts by my Associate to dial him into the hearing. In each attempt a voice message was left requesting that the Applicant join the hearing or call Chambers back urgently. No response was received and the hearing proceeded without the Applicant.
At the non-compliance hearing, the Respondent advised verbally that it would file a s.399A application to dismiss the matter. Later that day, the Respondent lodged a form F1 application. The grounds and relief sought were as follows:[1]
“Dismissal of Mr Dalton Downward’s unfair dismissal claim for:
- Lack of evidence supplied
- Failure to attend 3 previous FWC scheduled sessions
- Wasting the FWC time and resources
- Wasting the company’s time and resources”
At approximately 11:30AM on 1 March 2023, the Applicant was sent an email from Chambers giving him an opportunity to respond to the Respondent’s s.399A application. The email attached the Respondent’s Form F1 and stated:
· The Applicant had failed to attend the non-compliance hearing, despite several attempts to contact him prior to the hearing via both email and his mobile number;
· He was advised on the Notice of Listing and in subsequently emails and voice messages, that he was required to attend the non-compliance hearing;
· Conciliations before a staff conciliator on 22 December 2022 and before Deputy President Clancy on 15 February 2023 also did not proceed despite attempts by the Commission to contact him in that respect;
· The Commission was unable to reach him on his mobile number and had not received an explanation for his non-attendance;
· The Commission had not received a response to the 23 January email, in which he was directed to provide an outline of his submissions as soon as practicable;
· The Respondent had made an application under s.399A of the Act due to his failure to attend the non-compliance hearing, file adequate material in support of his Application, failure to attend the MAC, and the staff conciliation;
· He was directed to file with the Commission and serve on the Respondent submissions, evidence or other documentary material in support, as to why the Commission should not dismiss his application, by no later than 4:00PM, Friday 3 March 2023 (original emphasis);
· If he filed material by the due date, the Commission would consider his submissions and may deal with the Respondent’s application on the papers or list the matter for a further hearing on Thursday 9 January 2023; and
· If [he did] not provide [his] reasons by 4:00PM Friday 3 March 2023, it [was] very likely [his] case [would] be dismissed without further notice. (original emphasis)
At approximately 12:00PM on 1 March 2023, the Applicant was sent a further email from Chambers which stated:
“Dear Parties,
RE: U2022/11178 - Mr Brett Dalton-Downward v Hardwicks Meatworks Pty Ltd
Further to my previous email below, I confirm that the hearing previously listed at 10:00AM on 2 March 2023 via Microsoft Teams has been vacated. If required, the matter will be relisted for a hearing on Thursday 9 March 2023.
Kind Regards…”
At approximately 4:50PM that day, the Applicant responded by return email to the 11:30AM email, stating:
“I have said it before and j (sic) will say it again. I cannot sit on a phone call whilst I am trying to earn a living to feed my kids.”
At approximately 6:00PM that day, my Chambers replied to the Applicant’s email as follows:
“Dear Mr Dalton-Downward,
RE: U2022/11178 - Mr Brett Dalton-Downward v Hardwicks Meatworks Pty Ltd
Thank you for your email.
The Commissioner recognises the hardship of your position and understands the difficulty you may be experiencing because of your dismissal and the need to find new work.
However, it is the responsibility of all Applicants at the Commission to prosecute their claims. For the Commissioner to hear and determine your claim, you must comply with Directions issued by the Commission, including to file your submissions and to attend conferences and hearings listed before the Commissioner as required. If you do not file your submissions or attend when directed, the Commissioner will not be in a position to properly assess your application.
As you were advised in our correspondence from earlier this morning, the Respondent has made an application under s.399A of the Fair Work Act to have your unfair dismissal application dismissed. I have re-attached the application for your reference. As directed in that email, you will need to file your submissions as to why your application should not be dismissed, by 4:00PM Friday 3 March 2023 and attend a hearing at 10:00AM on Thursday 9 March 2023, where the Respondent’s s.399A application will be heard and determined.
If you are successful in responding to the s.399A application made in this matter, the Commissioner will proceed to hear and determine the substantive matter of whether your dismissal was unfair, at the hearing on Thursday 9 March 2023. You will need to be prepared to prosecute your unfair dismissal application on that day.
If you wish to continue your claim, please provide your submissions as described above, by return email.
If you do not wish to file your submissions or attend the hearing, you may discontinue your application by replying to this email confirming your intention to withdraw.
Please confirm as soon as possible by return email, whether you intend to continue your claim by filing your submissions and attending the hearing, or if you would prefer to withdraw your application.
Kind regards…”
On 3 March 2023, my Chambers attempted to contact the Applicant via mobile phone. The call went unanswered, and a voice message was left directing his attention to the 1 March email and advising that if no material was filed, a decision would be published dismissing his application.
To date, no further response has been received by Chambers in respect of the 23 January email, the 16 February email, or the 1 March emails.
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.”
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 dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”
I have applied the reasoning of the Full Bench in coming to my decision.
Section 399A(2) is satisfied by the Respondent’s application of 1 March 2023. Similarly, s.399A(1)(a) is satisfied by the Applicant’s failures to attend the MAC on 15 February 2023 and the non-compliance hearing on 1 March 2023. The jurisdictional pre-requisites are met for the Applicant’s application to be dismissed and it is a matter of discretion whether I do so.
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]
The Applicant was served with a copy of the s.399A application on 1 March 2023 and given until 4:00PM 3 March 2023 to respond. The email sent to the Applicant on 1 March 2023 clearly stated that, “If you don’t provide your reasons by 4:00PM, Friday 3 March 2023, it is very likely that your case will be dismissed without further notice (original emphasis).”
I am satisfied that the Applicant has acted unreasonably in failing to attend the MAC on 15 February 2023 and the non-compliance hearing on 1 March 2023. He was advised of both in advance via the contact details he has provided and has made minimal responses to the repeated Commission attempts to contact him. Further, I consider the Applicant has unreasonably failed to comply with my directions to respond to the s.399A application, and the directions for the unfair dismissal application, by not filing his submissions in response to the 23 January email. Finally, I note that the Applicant also did not attend a conciliation before a staff conciliator listed on 22 December 2022, prior to the matter being allocated to me.
For completeness, I note that the Applicant has provided some limited responses to the Commission’s attempts to contact him. The Applicant answered a phone call from Chambers on 13 January 2023 and confirmed that he intended to continue his application. In accordance with the Directions of 30 December 2022, he filed some material to support his application, albeit incomplete, on 19 January 2023. Finally, he responded to the 1 March email indicating that he “cannot sit on a phone call whilst [he is] trying to earn a living to feed [his] kids.”
In my view, while the above actions constitute some evidence that the Applicant has not entirely abandoned his application, they are insufficient, taken individually or as a whole, to displace my view that the Applicant has acted unreasonably in failing to attend the MAC and non-compliance hearing, and to comply with directions issued by the Commission in relation to his application.
The Respondent is entitled to ask for finality. The Applicant has not taken up the opportunity to prosecute his 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.
The Applicant’s application is therefore dismissed.
COMMISSIONER
[1] Respondent’s Form F1, Question 2.1
[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].
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