Craig Carter v Wormall Civil Pty Ltd

[2018] FWC 7245

[2018] FWC 7245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Craig Carter

v

Wormall Civil Pty Ltd

(U2018/8669)

Deputy President Beaumont PERTH, 3 DECEMBER 2018

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – application dismissed.

1. This decision concerns an application made by Mr Craig Carter (Mr Carter) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act).  The respondent, Wormall Civil Pty Ltd (Wormall), objected to the application on the basis that it was filed outside the 21 day period prescribed by s 394(2).

1. A hearing concerning Wormall’s objection was listed, by telephone, for 9:00AM (AWST) 28 November 2018. However, Mr Carter failed to attend this hearing. My Associate attempted on at least 6 occasions to contact Mr Carter. First at approximately 8:57AM (AWST). On this occasion, the phone was hung up immediately. My Associate left several voice mail messages informing Mr Carter that the matter was listed for hearing, and requesting an immediate call back. Mr Carter did not call back.

1. A Notice of Listing had been provided to the parties on 6 November 2018, and directions were issued. These directions confirmed the hearing date, and it is noted that Mr Carter filed materials in response to these directions.

1. At approximately 09:18AM (AWST) on 28 November 2018, Wormall contacted Chambers enquiring why it had not received a phone call given the listed hearing. Chambers informed Wormall that difficulty was being had contacting Mr Carter, and that Chambers would be in contact by email should they be unable to make contact with Mr Carter.

1. Following the failed hearing, Chambers emailed both parties, inviting Mr Carter to make submissions regarding his non-attendance at the hearing by no later than 5:00PM (AWST) Friday, 30 November 2018. Chambers drew the parties’ attention to section 399A of the Act.

1. Wormall contacted Chambers at approximately 9:55AM on 28 November 2018 in response to the email to the parties and informed Chambers that it wished to proceed with an application under s 399A.

Relevant Legislation

1. Section 399A of the Act 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.

1. Wormall advanced that Mr Carter’s failure to attend the hearing, and his general conduct throughout the matter created an ‘unnecessary workload to complete forms and make myself available for conferences when Mr Carter did not provide any evidence or provide answers to the jurisdictional objection’.[1] Wormall sought relief pursuant to section 399A(1)(a).

1. On 29 November 2018, Chambers again attempted to contact Mr Carter by telephone. The call was not answered, and Chambers left a message to call back.

1. On 30 November 2018, Wormall contacted Chambers asking for an update as to the status of its application under s 399A. Chambers advised that Mr Carter had been directed to respond to his non-attendance by no later than 5:00PM (AWST) 30 November 2018 and, should he fail to do so, that I would then consider Wormall’s application.

1. Mr Carter failed to attend the hearing listed for 28 November 2018, and has provided no reason for this non-attendance. The Commission has received no advice from Mr Carter as to how he would like to proceed with his application despite multiple email and telephone attempts to contact him. All voicemail messages that my Associate has left have remained unanswered. Mr Carter has not responded by the deadline provided in the directions following his non-attendance.

1. After considering all of the circumstances in this matter, and Wormall’s application, I have decided to dismiss Mr Carter’s application for an unfair dismissal remedy in accordance with section 399A(1)(a). My reasons for doing so are premised on the unreasonable failure of Mr Carter to attend the hearing, and his failure to comply with the directions issued on 28 November 2019.

DEPUTY PRESIDENT

<PR702670>

[1] Respondent’s Form 1 [2.2].

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