Colin Onslow v Camden Haven Tyres Pty Ltd

[2021] FWC 1360

[2021] FWC 1360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colin Onslow
v
Camden Haven Tyres Pty Ltd
(U2020/16286)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 12 MARCH 2021

Application for an unfair dismissal remedy – s 399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by Camden Haven Tyres Pty Ltd (Respondent) pursuant to s 399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by its former employee, Mr Colin Onslow, pursuant to s 394 of the Act.

Background

[2] Mr Onslow lodged his unfair dismissal application in the Fair Work Commission (Commission) on 22 December 2020. In that application, Mr Onslow contends that he was unfairly dismissed on 4 December 2020.

[3] The matter was listed for a directions hearing, by telephone, on 9 February 2021. Mr Onslow appeared at that directions hearing. I discussed with the parties the directions that would be made to prepare the matter for hearing. Later on 9 February 2021, directions were emailed to the parties, including a direction that Mr Onslow file and serve the witness statements, documents and submissions on which he wished to rely in support of his application by 4pm on 2 March 2021. Mr Onslow failed to comply with that direction and has not, at any time, filed any witness statements, documents or submissions in support of his unfair dismissal application.

[4] On 3 March 2021 an email in the following terms was sent to Mr Onslow:

“Dear Mr Onslow

I refer to the directions issued in this matter on 9 February 2021 at 12:38pm (below).

In those directions you were directed to file with the Fair Work Commission, and serve on the Respondent, witness statements, documents and submissions you intend to rely on in support of your application in this matter by no later than 4pm on 2 March 2021. No such witness statements, documents and submissions have been filed.

The Deputy President extends the time by which you must file and serve on the Respondent, witness statements, documents and submissions you intend to rely on in support of your application in this matter to no later than 4pm on 4 March 2021.

If nothing is filed in support of your application by that time, your unfair dismissal application may be dismissed without further notice to you…”

[5] There was no response to the email sent to Mr Onslow on 3 March 2021.

Application for dismissal

[6] On 8 March 2021 the Respondent filed and served a written application to dismiss Mr Onslow’s unfair dismissal application on the basis of his failure to file or serve any material in support of his application, contrary to the directions made on 9 February 2021 and 3 March 2021.

[7] Later on 8 March 2021, correspondence was sent from my chambers to Mr Onslow to inform him that the Respondent’s application to dismiss his unfair dismissal application had been listed for hearing, by telephone, at 4pm on Friday, 12 March 2021. Mr Onslow was informed that it was important that he participate in the hearing if he wished to oppose the Respondent’s application to dismiss his unfair dismissal application.

[8] A hearing, by telephone, was conducted at 4pm on 12 March 2021. My Associate attempted, without success, to contact Mr Onslow at the commencement of the hearing on 12 March 2021. There was no appearance by or on behalf of Mr Onslow at the hearing on 12 March 2021. The Respondent pressed its application for dismissal of Mr Onslow’s unfair dismissal application pursuant to s 399A of the Act.

[9] Section 399A of the Act provides as follows:

“(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 powers under subsection (1) on application by the employer.”

[10] The discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances. 1

[11] In light of the history of the proceedings outlined above, I am satisfied that:

•  Mr Onslow has unreasonably failed to comply with directions made by the Commission to file and serve witness statements, documents and submissions in support of his unfair dismissal application; and

•  there has been an application by the employer in accordance with s 399A(2).

[12] In the circumstances, I exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Mr Onslow’s unfair dismissal application.

DEPUTY PRESIDENT

Appearances:

Mr Maher appeared for the respondent

Hearing details:

2021.

Newcastle:

12 March.

Printed by authority of the Commonwealth Government Printer

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 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]