Craig Proud v Winslow Constructors

[2015] FWC 8280

[2015] FWC 8280

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Proud
v
Winslow Constructors
(U2015/6509)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 3 DECEMBER 2015

Application for relief from unfair dismissal – respondent application under section 399A of the Fair Work Act 2009- failure by applicant to attend hearing.

[1] On 16 July 2015 Mr Craig Proud made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy on the basis that his dismissal as a load operator at Winslow Constructors was harsh, unjust or unreasonable.

[2] The application was listed for arbitration conference/hearing in the Arbitration Roster for 2 days, 19 to 20 November 2015. Although Winslow Constructors appeared at the hearing on 19 November 2015, Mr Proud did not attend. Attempts by my associate to contact Mr Proud on the telephone number he provided were unsuccessful and the hearing scheduled for the following day, 20 November 2015 was cancelled.

[3] At the hearing on 19 November 2015 I explained to the respondent that the application could be dismissed under section 399A of the Act. I proposed writing to the applicant and requesting an explanation as to the reason why he failed to appear in the first instance and if there was no response, potentially dismissing the application. To this proposal, Winslow Constructors replied “I do agree your Honour”, and confirmed by email on 2 December 2015 that they were applying under section 399A of the Act for the matter to be dismissed.

[4] On 19 November 2015, I wrote to the applicant (via his email and postal address, copying in Winslow Constructors) requesting an explanation as to why he failed to attend the hearing by close of business, Wednesday 25 November 2015. In the letter I explained that failure to provide an explanation may result in the application being dismissed. Mr Proud did not respond to this letter.

[5] Section 399A of the Act is set out below:

“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.”

[6] Mr Proud did not attend the hearing on 19 November, did not respond to my associate’s voicemail messages asking that he contact chambers and has not responded to my letter of 19 November 2015. Mr Proud has been provided with the opportunity to explain why he did not attend the hearing and he has not responded. In my view, he has acted unreasonably and I will now under section 399A of the Act dismiss this application. An order dismissing the application is contained in PR574690.

DEPUTY PRESIDENT

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