Christopher Chaston v West Wimmera Shire
[2023] FWC 2449
•28 SEPTEMBER 2023
| [2023] FWC 2449 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Christopher Chaston
v
West Wimmera Shire
(U2023/6317)
| COMMISSIONER LEE | MELBOURNE, 28 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – application to dismiss made pursuant to s.399A – application dismissed.
On 12 July 2023, Mr Christopher Chaston (the Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed from his employment with West Wimmera Shire (the Respondent).
There is a dispute as to the effective date of dismissal. In the Applicants Form F2, he states:
“I don’t know the exact date. Well my last pay was 21 June 2023. Which was the same day I got the mail out of mailbox, but date says 15th on termination letter. Now I have just been informed that the letter got delivered to my ex-wife adress (sic) and the letter had been opened.”
The Respondent raises a jurisdictional objection to the application on the basis that the application was made out of time. In the Respondents Form F3, the Respondent indicates that the dismissal took effect on 15 June 2023. Further, the Respondent stated that the termination letter was delivered to the address on the Applicant’s payroll record (and the address listed on payslips). The termination letter was also sent to the Applicant via email and there were multiple attempts to contact the Applicant via phone to advise of the outcome.
On 12 September 2023, my Chambers sent an email to the Applicant. The email attached a letter which set out that the application may have been lodged out of time as the Applicant was unsure as to the date the dismissal took effect, and the Respondent maintained the dismissal took effect on the 15 June 2023. The letter explained that if the application was lodged outside of the statutory period that the claim could only proceed if the time limit was extended by a Fair Work Commission member. The letter also set out that the Applicant was required to provide evidence relevant as to when the dismissal took effect and any evidence as to why the Applicant says that there are exceptional circumstances such that the FWC should extend the time limit in the event the application was made out of time.
Directions were attached to the letter requiring the Applicant to provide a signed witness statement by no later than 5:00 PM Monday 18 September 2023. The witness statement was to include everything that the Applicant would rely on about each of the following:
· The effective date of dismissal;
· The reason(s) for the delay;
· Whether the Applicant first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant any other persons in a similar position.
A notice of listing was also sent to parties on 12 September 2023 indicating that the application had been listed for Determinative conference/hearing - Jurisdiction only by Video using Microsoft Teams at 9:30 AM (VIC Time) Thursday, 21 June 2023.
The Applicant failed to file any materials by 5:00 PM Monday 18 September 2023 or make any contact with my Chambers. My Associate attempted to call the Applicant on 19 September 2023, however the Applicant did not answer or return the call. Later that day, a further Notice of Listing was sent to parties. The matter was listed for Non-compliance Hearing at 12:00 PM (VIC Time), 20 September 2023.
On the day of the Non-compliance Hearing, my Associate contacted the Applicant on three occasions via the mobile number provided in his Form F2. The first call was at 11.49 AM, where a voice mail was left. The second call was at 12.02 PM where a further voice mail was left, and the third call was at 12.05 PM where no voice mail was left. The Applicant did not answer or return any of the calls and did not attend the Non-compliance Hearing.
The Non-compliance Hearing took place with only the Respondent attending. The Respondent applied to have the application dismissed pursuant to s.399A on the grounds that the Applicant failed to attend a hearing held by the FWC, in relation to the application, and that the Applicant failed to comply with a direction of the FWC relating to the application.
On 20 September 2023, my Chambers wrote to the Applicant directing him to file with the Commission, and serve on the Respondent, submissions providing reasons as to why the Commission should not dismiss his application, including evidence or other documentary material he had to support any reasons given. The Directions required any relevant material to be provided by no later than 5:00pm Wednesday, 27 September 2023.
The correspondence also included the following:
“If you do not respond by 5:00pm Wednesday, 27 September 2023, the Commissioner proposes to dismiss your application without further notice.”
To date, the Applicant has not filed any material, or otherwise contacted the Commission.
Section 399A of the 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.
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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss pursuant to s.399A of the Act, I will determine the application on the papers.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant failed to attend a hearing held by the FWC and failed to comply with a direction of the FWC. For these reasons, I have determined to exercise my discretion under s.399A(1)(a) of the Act and dismiss the Applicant’s application.
The Applicant’s application for remedy from unfair dismissal is dismissed. An order[1] will be issued concurrently with this decision.
COMMISSIONER
[1]PR766483.
Printed by authority of the Commonwealth Government Printer
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