Cameron McKinnon v Dejay Contracting Pty Ltd

[2019] FWC 1955

[2019] FWC 1955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cameron McKinnon
v
Dejay Contracting Pty Ltd
(U2018/13475)

COMMISSIONER PLATT ADELAIDE, 25 MARCH 2019

Application for an unfair dismissal remedy – failure to participate in proceedings – s.399A application – application dismissed.

Summary

[1] This decision deals with an application by the Dejay Contracting Pty Ltd pursuant to s.399A of the Fair Work Act 2009 (Dejay Contracting) to dismiss an unfair dismissal application lodged by Mr Cameron McKinnon on 28 December 2018.

[2] The application was listed for Conciliation by the Commission on 11 February 2019, but the matter did not proceed.

[3] The matter was allocated to my Chambers on 7 March 2019.

[4] A Directions Hearing was held on 15 March 2019. Mr McKinnon represented himself and Mr Hynes (of Counsel) represented Dejay Contracting (with permission not being opposed by Mr McKinnon). The matter was listed for Hearing on 2 April 2019. Mr McKinnon was directed to file his material, and Dejay Contracting was directed to discover all time and wages records held in its possession, by 4:00pm on 21 March 2019. The Directions were confirmed in writing and distributed to both parties on 19 March 2019.

[5] No material was received from either party on 21 March 2019. An email to that effect was sent at 5:25pm on 21 March 2019 advising that a Non-compliance Hearing would be listed as a result of the failure to comply.

[6] On 21 March 2019, Dejay Contracting advised it had discovered the time and wages records to Mr McKinnon, but not the Commission, and remedied the error.

[7] At 12:26pm on Friday 22 March 2019, my Chambers emailed Mr McKinnon and directed that he file his material by 5:00pm that day and that if he failed to do so a Non-compliance Hearing by telephone would be held at 1:30pm on 25 March 2019.

[8] A s.399A application was filed by Dejay Contracting at 5:13pm on Friday 22 March 2019 and served on Mr McKinnon.

[9] A listing for the Hearing on 25 March 2019 was sent at 9:02am that day.

[10] At 9:14am on 25 March 2019 my Associate sought to contact Mr McKinnon by email and telephone asking him to contact the Commission urgently.

[11] Mr McKinnon did not attend the Hearing at 1:30pm on 25 March 2019. My Associate was unable to contact Mr McKinnon by telephone or email. At 1:35pm the matter proceeded in the absence of Mr McKinnon. Mr Hynes represented Dejay Contracting and asked the Commission to dismiss the matter as a result of Mr McKinnon’s failure to submit material.

[12] Section 399A states:

“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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

Findings

[13] The Commission’s communications were directed to Mr McKinnon using the contact details provided within his application, including both a telephone number and an email address. Mr McKinnon’s attendance at the Directions Hearing on 15 March 2019 indicated that he was receiving emails to the address stated.

[14] The failure of Mr McKinnon to comply with the Directions and attend the Non-compliance Hearing on 25 March 2019 satisfies the requirements of s.399A(1)(a) and (b) of the Act.
[15] In my view, Mr McKinnon’s conduct is unreasonable and he has failed to prosecute his application after it was lodged.

[16] Mr McKinnon’s application is dismissed pursuant to s.399A of the Act. An Order¹ to this effect will be issued.

COMMISSIONER

Appearances:

The Applicant did not attend.

M Hynes (of Counsel) on behalf of the Respondent.

Hearing details:

2018.

Adelaide.

25 March.

Printed by authority of the Commonwealth Government Printer

<PR706186>

1 PR706187.