Daniel Milne v Budget Screens Blinds and Awnings

[2019] FWC 92

[2019] FWC 92

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Milne
v
Budget Screens Blinds and Awnings
(U2018/9534)

COMMISSIONER BOOTH BRISBANE, 8 JANUARY 2019

Application for an unfair dismissal remedy – s.399A Application to dismiss.

[1] On 16 September 2018, an application under s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Daniel Milne (the Applicant). The Applicant’s employment had been terminated by Budget Screens Blinds and Awnings (the Respondent) on 10 September 2018.

[2] The application was listed for a conciliation conference before a conciliator on 11 October 2018 at which Mr Milne was uncontactable despite efforts to do so. Mr Milne made no attempt to contact the Fair Work Commission (the Commission) therefore the matter was referred for arbitration before Deputy President Dean.

[3] Deputy President Dean’s Chambers emailed Mr Milne on 23 October 2018 requesting further information required relating to Budget Screens Blinds and Awnings’ jurisdictional objection. Mr Milne emailed the Commission about his application on 31 October 2018, but did not provide the information requested by Deputy President Dean.

[4] Deputy President Dean’s Chambers attempted to contact Mr Milne by email and by telephone regarding the further information needed for his application between 6 November 2018 and 13 November 2018. Mr Milne did not reply to any of the emails or voicemail messages sent by Deputy President Dean’s Chambers, but did email Chambers and leave voicemail messages with Chambers seeking instructions on what he was meant to do next.

[5] Deputy President Dean listed the matter for telephone conference on 26 November 2018 with all parties in attendance. The matter was referred to me on 30 November 2018.

[6] The matter was listed for a further telephone conference at 10:00am on 18 December 2018. The Notice of Listing was sent to both parties on 4 December 2018 and Mr Milne replied to the Notice of Listing providing his contact telephone number on the same day. Attempts to contact Mr Milne for this telephone conference were unsuccessful, so the matter was postponed until 2:30pm the same day.

[7] Attempts to contact Mr Milne were unsuccessful at both listing times. Voicemail messages as well as email messages were left for Mr Milne to contact the Commission.

[8] On 19 December 2018, Budget Screens Blinds and Awnings applied under s.399A(1)(a) of the Act to dismiss Mr Milne’s application. This was also emailed to Mr Milne.

[9] Correspondence was emailed to Mr Milne on 19 December 2018 requesting that he provide the Commission with an explanation as to his failure to attend the telephone conference. Mr Milne was directed to provide reasons as to why his application should not be dismissed by 4:00pm on 21 December 2018.

[10] No response to this correspondence was received from Mr Milne.

[11] At 5:16pm on 21 December 2018, Budget Screens Blinds and Awnings made a further request to have Mr Milne’s application dismissed. This was emailed to Mr Milne. On 7 January 2019, Budget Screens Blinds and Awnings emailed my Chambers and Mr Milne requesting an update on the matter.

[12] My Chambers has not received any other correspondence from Mr Milne.

[13] 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.

[14] Taking into account the provisions of s.399A and specifically s.399A(2), I am satisfied that Budget Screens Blinds and Awnings’ correspondence of 19 December 2018 is an application to have the matter dismissed for Mr Milne’s failure to meet the provisions of ss.399A(1)(a) and (b).

[15] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[16] As Mr Milne has shown no willingness to prosecute his case, I have decided to determine the application on the papers.

[17] Upon considering that Mr Milne did not provide any reasons or file any material in opposition to the application to dismiss and has failed to attend a conference and comply with directions to attend a conference, I have decided to dismiss Mr Milne’s application for remedy from unfair dismissal under s.399A(1)(a) and (b) of the Act. An order giving effect to this decision will be issued today.

COMMISSIONER

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