Brian Muggleton v GRA Trading Pty Ltd
[2024] FWC 886
•5 APRIL 2024
| [2024] FWC 886 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brian Muggleton
v
GRA Trading Pty Ltd.
(U2024/690)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 5 APRIL 2024 |
Application for an unfair dismissal remedy - application dismissed
This decision relates to an unfair dismissal application by Mr Brian Muggleton pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, GRA Trading Pty Ltd T/A Jim’s Hazardous Material Removal (Brisbane) filed on 22 January 2024.
On 11 March 2024, I issued directions for the filing of material. The directions included both the date and time for the conference and a requirement that the Applicant file material by no later than 4:00pm (AEST) on 26 March 2024.
The matter was listed for a conference, by telephone, at 10am on 26 March 2024. Mr Muggleton did not appear at the conference. Mr Gary Anderson appeared on behalf of the Respondent.
At the commencement of the conference, my Associate contacted the Applicant on the contact number provided by the Applicant on his Form F2. A voicemail message was left instructing the Applicant to answer the next call. Two further attempts to contact the Applicant on the telephone number were made and an SMS message was issued from my Chambers. As at the date of this decision, Mr Muggleton has not responded to those messages.
On 26 March 2024, the following email was sent from my Chambers to Mr Muggleton:
“Dear Mr Muggleton
I refer to the above matter.
A conference was listed before the Deputy President at 10:00am (AEST/QLD) today and you have failed to attend. The contact number provided by you on your Form F2 Application was contacted several times and a text message was issued reminding you of your obligation to attend.
The Deputy President is considering whether your unfair dismissal application should be dismissed in accordance with s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your claim.
If you wish to proceed with your application, you must make contact with Chambers by way of email by no later than 4:00pm (AEST) today and provide the reasons for your failure to attend. Any reason must be supported by sufficient evidence and must be copied to the Respondent. You are reminded that your material in relation to the merits of your application is also due to be filed by no later than 4:00pm (AEST) today.
In the absence of a response from you, your application may be dismissed without further notice to you. A publicly available decision will be published to this effect on the Fair Work Commission’s website.
Alternatively, if you do not wish to proceed with your application, you can reply by email that you wish to discontinue the application. You may alternatively submit a Form F50 – Notice of Discontinuance.
Finally, should the Respondent file according to s 399A of the Act, the Deputy President will be required to consider whether the matter be dismissed.
The Respondent is copied for their information…”
No response was received from Mr Muggleton.
On the evening of 26 March 2024, the Respondent filed an application pursuant to s. 399A on a Form F4, seeking that the application for unfair dismissal be dismissed on the basis that the Applicant failed to attend the conference set for 10:00am on 26 March 2024 in accordance with my directions and that the Applicant failed to comply with a direction of the Commission by failing to lodge his submissions and witness statements by 4:00pm on 26 March 2024.
I waived the requirement of the Fair Work Commission Rules (Rules) that the Respondent’s s.399A application be lodged on a Form F1 (the general form to be used for applications in respect of which no other form is prescribed by the Rules) pursuant to s.586 of the Act. I did so because the grounds for the application were simply and concisely set out in the Respondent’s Form F4.
On 27 March 2024, the following email was sent from my Chambers to Mr Muggleton:
“Dear Mr Muggleton
It is noted that we did not receive a response to our correspondence. It is the Deputy President’s current view that your unfair dismissal application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your unfair dismissal claim. The Respondent has also formally requested that the matter be dismissed using the attached Form F4. It appears the Respondent has intended that this form be used as a form F1 application pursuant to s.399a. The Deputy President considers it appropriate to use her discretion to waive the irregularity in the way the 399a application has been made.
Please provide a response to the Respondent’s application that your application be dismissed by 4pm Tuesday 2 April 2024.
Further, if you wish to proceed with your unfair dismissal application, you must make contact with us by 4:00pm (AEST/QLD) Tuesday 2 April 2024. If we do not hear from you by that time, your unfair dismissal application may be dismissed without further notice to you. You may contact us by email ([email protected]) or by telephone …”
“I note that if you do not discontinue your application and the Commission dismisses it because you are not pursuing your application, a publicly available decision must be published on the Fair Work Commission website.
Alternatively, if you do not wish to proceed with your unfair dismissal application you can inform us, by reply email, that you wish to discontinue your application…”
Again, no response from Mr Muggleton was received by my Chambers at the time of writing this decision. The Applicant also failed to file the material as directed.
Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the Applicant ‘has unreasonably failed to comply with a direction or order of the FWC relating to the application’ (s.399A(1)(b)). I am satisfied that the Applicant unreasonably failed to comply with the requirement to attend the previously listed conference and to file his materials in accordance with the directions. I consider that the failure was unreasonable for the following reasons:
(A)The Applicant has repeatedly failed to offer any reasonable explanation for his failure to comply with the directions or attend the listed conferences.
(B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress his non-compliance but has failed to do so.
My discretion to dismiss the Applicants’ unfair dismissal application under s.399A has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for his failure to comply with my directions, failure to attend a conference or failure to file materials. Further Mr Muggleton has failed to respond to communications from my Chambers, failed to provide an explanation for his non-compliance and failed to respond to the s.399A application made by the Respondent. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application.
For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.399A.
Pursuant to s.399A, the Applicant’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
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