Daniel Smith-Williams v TDB Electrical Pty Ltd

[2023] FWC 3403

[2023] FWC 3403

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Smith-Williams
v

TDB Electrical Pty Ltd

(U2023/9719)

COMMISSIONER LIM PERTH, 19 DECEMBER 2023

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

Introduction

1. On 6 October 2023, Mr Daniel Smith-Williams (the Applicant) applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Unfair Dismissal Application). The Applicant alleges TDB Electrical Pty Ltd (the Respondent) unfairly dismissed him.

1. On 27 November 2023, my Chambers wrote to the parties directing them to attend a conference on 12 December 2023 at 11:30am. A notice of listing was issued to the parties the same day.

1. On 12 December 2023, neither the Applicant nor his representative, Unfair Dismissal Australia Pty Ltd, attended the conference. My associate contacted Unfair Dismissal Australia Pty Ltd by phone but was unable to connect to the representative.

1. My associate successfully contacted the Applicant at 11:34am and explained the importance of attending the conference. The Applicant informed my associate that he would not be participating in the conference.

1. I proceeded with the conference. The Respondent’s representative made an application under s 399A of the Act to dismiss the Unfair Dismissal Application. I waived compliance with the Rules pursuant to s 586 of the Act and accepted the application.

1. On 12 December 2023, Chambers wrote to the parties to inform them of the Respondent’s s 399A application and directed the Applicant to provide a response or evidence on why his application should not be dismissed by 4:00pm, 14 December 2023.

1. To date, the Applicant has not made any contact or provided a response.

1. For the reasons that follow, I grant the Respondent’s s 399A application and dismiss the Unfair Dismissal Application.

Consideration

1. Section 399A of the Act states 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.”

1. The relevant principles for s 399A applications were summarised by the Full Bench in Lockyear v Graeme Cox[1] at [57]:

“[57]    In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1.An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. 14 Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2.The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3.The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4.In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5.A conference or hearing may be required where there are facts in dispute 15 and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.

1. The Respondent’s grounds for the s 399A Application are that the Applicant failed to attend the conference on 12 December and his attendance was unreasonable as he did not inform the Commission or the Respondent prior to the conference that he did not intend to participate.

1. There are no facts in dispute in this s 399A application.

1. I find that an application has been made under s 399A, and the Applicant has been served with a copy of the application was given the opportunity to respond to it. I also find that the Applicant’s failure to attend the conference on 12 December 2023 and his lack of notice satisfies s 399(1)(a) of the Act. This gives rise to my discretion as to whether to dismiss the Unfair Dismissal Application.

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly.[2]

1. Given the Applicant was told verbally of the importance of attending and his lack of contact despite the written correspondence to him, I see no utility in his claim continuing. I grant the Respondent’s application under s 399A and dismiss the Unfair Dismissal Application.

1. An order giving effect to this decision will be issued separately.[3]

COMMISSIONER

[1] [2021] FWCFB 875

[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31]

[3] PR769636

Printed by authority of the Commonwealth Government Printer

<PR769586>