Chad Barden v John Valves Pty Ltd

[2020] FWC 2785

[2020] FWC 2785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chad Barden
v
John Valves Pty Ltd
(U2019/14234)

DEPUTY PRESIDENT BINET PERTH, 28 MAY 2020

Application for an unfair dismissal remedy – failure to comply with Directions – application to dismiss pursuant to s.399A – application dismissed.

[1] On 17 December 2019, Mr Chad Barden (Mr Barden) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (Commission) alleging he was unfairly dismissed by John Valves Pty Ltd (John Valves).

[2] On 6 January 2020, John Valves filed a Form F3 response to the Application. John Valves’ response raised a jurisdictional objection to the Application, namely that Mr Barden resigned instead of being dismissed from employment (First Jurisdictional Objection).

[3] The matter was listed for conciliation with a staff conciliator on 30 January 2020 where a further jurisdictional objection was raised that the Application was lodged out of time (Second Jurisdictional Objection).

[4] Chambers endeavoured to contact Mr Barden by email on 17 and 27 February 2020 to arrange a conference but Mr Barden did not respond.

[5] On 24 March 2020, the parties were issued with directions which required Mr Barden to file and serve by 4pm on 7 April 2020 submissions and evidence in relation to the First and Second Jurisdictional Objection (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[6] On 9 April 2020, Chambers emailed the parties noting that Mr Barden had not filed the materials as required. Mr Barden was advised that the Application may be dismissed if he did not comply with the Directions.

[7] On 14 April 2020, John Valves filed with Chambers and served on Mr Barden an application for the Application to be dismissed pursuant to section 399A of the FW Act. John Valves submitted that the Application should be dismissed pursuant to section 399A on the grounds that Mr Barden unreasonably failed to comply with a direction of the Commission when he failed to file his materials in accordance with the Directions (Dismissal Application).

[8] On 20 April 2020, Mr Barden was invited to file by 4pm on 23 April 2020 submissions and evidence as to why the Application should not be dismissed.

[9] 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.

Note 1: for other 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.”

[10] Mr Barden failed to file any of the materials he was directed to file by the dates specified in the Directions. Mr Barden failed to seek an extension to file his materials or provide a reason for failing to do so. As at the date of this decision, Mr Barden has still not filed any materials in response to the Jurisdictional Objections or in opposition to the Dismissal Application. I am satisfied that Mr Barden has unreasonably failed to comply with directions of the Commission relating to this Application.

[11] On application of John Valves and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR719710] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR719709>