Bruce Johnstone v Wine By Sam Pty Ltd ATF the Plunkett Dunwoodie Family Trust T/A Wine By Sam Pty Ltd

[2020] FWC 3498

[2020] FWC 3498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bruce Johnstone
v
Wine By Sam Pty Ltd ATF the Plunkett Dunwoodie Family Trust T/A Wine By Sam Pty Ltd
(U2020/3163)

COMMISSIONER BISSETT MELBOURNE, 3 JULY 2020

Application for an unfair dismissal remedy – failure to comply with directions - s.399Aapplication to dismiss.

[1] On 18 March 2020 Mr Bruce Johnstone (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant alleged he was dismissed from his employment with Wine By Sam Pty Ltd ATF the Plunkett Dunwoodie Family Trust T/A Wine By Sam Pty Ltd (Respondent) on 17 March 2020.

[2] The matter was the subject of conciliation where it was not resolved. Consequently directions were issued and the matter was listed for Arbitration Conference/Hearing on 2-3 July 2020. The Applicant was directed to file his material by no later than noon on 11 May 2020. The Applicant failed to comply with this direction.

[3] On 1 June 2020 the Commission issued Amended directions requiring the Applicant to file his materials by no later than noon on 8 June. The Applicant again failed to comply with the Commission’s directions.

[4] On 15 June 2020 my chambers wrote to the parties advising that the matter would be listed for a Member Assisted Conciliation. The parties were also advised that if the conciliation was not successful, the matter would proceed to a formal hearing. The matter was subsequently listed for conciliation on 25 June 202 however it could not proceed as the Applicant could not be contacted.

[5] On 26 June 2020 the Respondent filed an objection to the application and sought the dismissal of the Applicant’s application on the grounds that the Applicant failed to:

1. attend the conciliation without providing a reasonable (or any) excuse;

2. file statements of evidence and document list by 11 May 2020 in compliance with the directions of the Commission; and

3. otherwise prosecute his case.

[6] On 25 May 2020 the Commission sent email correspondence to the Applicant’s nominated email address advising him of the Respondent’s s.399A application. The Applicant was directed to file submissions and evidence providing reasons as to why the Commission should not dismiss his application by no later than noon on 30 June 2020. The correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[7] The Applicant did not file any material with the Commission.

[8] Section 399A of the FW 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

(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.

[9] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in accordance with the Commission’s direction, I will determine the application on the papers.

[10] The power to dismiss an application for non-attendance at a conference is discretionary. The Applicant has failed to respond to numerous requests from the Commission and, most recently, failed to attend the conciliation on 26 June 2020.

[11] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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