Daniel Hill v Vita Group Pty Ltd

[2021] FWC 2586

[2021] FWC 2586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Hill
v
Vita Group Pty Ltd
(U2021/2169)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 7 MAY 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 Vita Group 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 Daniel Hill, pursuant to s 394 of the Act.

Background

[2] Mr Hill lodged his unfair dismissal application in the Fair Work Commission (Commission) on 16 March 2021. In that application, Mr Hill contends that he was unfairly dismissed on 9 March 2021.

[3] The matter was listed for a directions hearing, by telephone, on 4 May 2021. Mr Hill did not appear. The Respondent was represented by Ms Moss and Ms Hill. At the directions hearing the Respondent informed the Commission that it intended to make an application under s 399A of the Act for Mr Hill’s unfair dismissal application to be dismissed on account of his unreasonable failure to attend the directions hearing on 4 May 2021.

[4] At 11:10am on 4 May 2021 an email in the following terms was sent from my chambers to the parties:

“Dear Mr Hill and Ms Moss

I refer to the directions hearing, by telephone, in this matter before Deputy President Saunders at 10am this morning.

There was no appearance by or on behalf of Mr Hill at the directions hearing. Ms Moss appeared for the respondent.

The respondent has informed the Commission that it wishes to make an application under s 399A of the Fair Work Act to dismiss Mr Hill’s unfair dismissal application on the basis that he unreasonably failed to attend the directions hearing at 10am this morning. Attached is an application form which the respondent may use to make such an application.

Deputy President Saunders makes the following directions:

1. By 4pm on 5 May 2021, the respondent must file and serve its application under s 399A of the Fair Work Act to dismiss Mr Hill’s unfair dismissal application on the basis that he unreasonably failed to attend the directions hearing at 10am on 4 May 2021.

2. The respondent’s application under s 399A of the Fair Work Act to dismiss Mr Hill’s unfair dismissal application is listed for hearing, by telephone, at 9am on Friday, 7 May 2021.

Mr Hill, it is essential that you participate in the hearing, by telephone, at 9am on Friday, 7 May 2021. If there is no appearance by you, or on your behalf, at that time, your unfair dismissal application may be dismissed without further notice to you.”

[5] On 5 May 2021 the Respondent filed its application under s 399A of the Act. A copy of that application was sent to the Applicant by email at 1:24pm on 5 May 2021.

Application for dismissal

[6] A hearing, by telephone, was conducted at 9am on 7 May 2021. My Associate attempted, without success, to contact Mr Hill at the commencement of the hearing on 7 May 2021. There was no appearance by or on behalf of Mr Hill at the hearing on 7 May 2021, nor did the Commission receive any communication from Mr Hill in the period between the first directions hearing on 4 May 2021 and the hearing on 7 May 2021. The Respondent pressed its application for dismissal of Mr Hill’s unfair dismissal application pursuant to s 399A of the Act.

[7] 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.”

[8] 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

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

•  Mr Hill unreasonably failed to attend a directions hearing before the Commission on 4 May 2021 and has not taken any steps since that time to demonstrate that he wishes to pursue his unfair dismissal against the Respondent; and

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

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

DEPUTY PRESIDENT

Appearances:

Ms Moss and Ms Hill appeared for the respondent

Hearing details:

2021.
Newcastle:
7 May.

Printed by authority of the Commonwealth Government Printer

<PR729628>

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