David Pfingst v Cleanaway Operations Pty Ltd

[2022] FWC 1213

[2022] FWC 1213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Pfingst
v

Cleanaway Operations Pty Ltd

(U2022/2750)

DEPUTY PRESIDENT LAKE BRISBANE, 17 MAY 2022

Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed.

1. Mr David Pfingst (the Applicant) lodged an Application (Application) with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Cleanaway Operations Pty Ltd (the Respondent). Mr Sean Edwards for the Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.

Legislation

1. Section 399A of the FW Act provides:

“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 other 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.”

Procedural background

1. This matter was listed for a staff conciliation on 6 April 2022 by telephone to see if the matter could be resolved between the parties. On 18 March, the Applicant called and confirmed their mobile number.

1. On 6 April 2022, the staff conciliation was attended by both the Applicant and the Respondent. The matter was not resolved at conciliation.

1. On 7 April 2022, the matter was allocated to my Chambers for determination of the merits of the application. A notice of listing and directions were sent from my Chambers on 12 April 2022 setting out dates by which the parties were to provide material in respect of the application, putting the parties on notice for a Mention/Directions Conference, and listing the matter for, inter alia, a Hearing before me on 1 June 2022 at 10:00am.

1. On 27 April 2022 at 9:13am, the Mr Sean Edwards for the Respondent wrote to my Chambers stating,

“Dear Chambers,

I refer to the above matter.

I have been handed this matter and I now have carriage.

I understand that the Applicant was required to file and serve his material by 4:00pm, Tuesday 26 April 2022.

Can you please provide me with a copy of the Applicant’s materials so I may prepare, file and serve our response.

I have also included the Applicant on this email for future service.”

1. On 27 April 2022 at 6:09pm, my Chambers wrote to the Parties stating,

“Dear parties,

Chambers refers to the Directions that were issued to the Parties on 12 April 2022.

Mr Pfingst failed to comply with the Directions by the date specified in those Directions.

In accordance with paragraph [1] of the Directions, Mr Pfingst was required to file in the Commission, and serve on Cleanaway Operations Pty Ltd, by 4pm on Tuesday 26 April 2022 an outline of submissions, witness statements, and other documentary materials.

As a result of this non-compliance, Mr Pfingst is directed to provide an explanation and evidence as to why he failed to comply by Thursday 28 April 2022 before 5pm.

Mr Pfingst, if you do not wish to proceed with the application, you should complete the attached Notice of Discontinuance and forward it to Chambers by Thursday 28 April 2022 before 5pm.”

1. No response was received.

1. On 29 April 2022 at 7:43am, Mr Edwards wrote back to my Chambers stating,

“Dear Chambers,

I refer to the above matter and the below correspondence.

Pursuant to section 399A(b) of the FW Act, the Respondent is seeking the unfair dismissal application. Matter No. U2022/2750 to be dismissed.

The Applicant has failed, on two [sic] separate occasions to comply with the directions relating to the application, specifically:

1.The directions dated 12 April 2022, requiring the Applicant to file and serve an outline of submissions, witness statements, and supporting material; and

2.The directions dated 27 April 2022, requiring the Applicant to file explanation and supporting evidence for the non-compliance.

If the Commission requires further submissions or particulars in support of this application please let me know and I will forward without delay.”

1. On 29 April 2022 at 9:13am, my Chambers wrote to the Parties in the following terms:

“Dear Parties,

Chambers refers to the Directions that were issued to the Parties on 12 April 2022 and 27 April 2022.

Mr Pfingst failed to comply with the Directions by the date specified in those Directions.

In accordance with paragraph [1] of the Directions, Mr Pfingst was required to file in the Commission, and serve on Cleanaway Operations Pty Ltd, by 4pm on Tuesday 26 April 2022 an outline of submissions, witness statements, and supporting material. Mr Pfingst failed to comply with this direction.

The Applicant was then given a Direction on 27 April 2022 to provide an explanation and evidence as to why he failed to comply by 5pm on Thursday 28 April 2022. Mr Pfingst failed to comply with this direction.

Section 399A of the FW 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.”

Please note that the Commission cannot dismiss an application pursuant to section 399A unless the employer makes an application for the Commission to do so. If Cleanaway Operations wishes to make an application pursuant to section 399A to have the Application dismissed on the grounds that Mr Pfingst failed to comply with a direction of the Commission, Cleanaway Operations may do so using a Form F1 Application (no specific form provided) attached. A copy of the section 399A application and any supporting documentation should be forwarded to the Commission and copied to Mr Pfingst by 4pm (AEST) Friday 29 April.

Mr Pfingst, if you do not intend to proceed with the Application you should complete the attached Notice of Discontinuance and forward it to Chambers by 4pm (AEST) Friday 29 April.”

1. On 29 April 2022, Mr Edwards provided the requested information by email and copied in the Applicant into the correspondence.

Respondent’s submissions

1. The Respondent submits that the Applicant has been afforded more than a reasonable amount of time to comply with the Directions in order to advance his own claim.

Consideration

1. The Applicant has failed to discontinue his application. He had been provided with ample opportunity to provide an explanation for his absence but has not done so. The failure to comply with directions has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A of the Act.

1. The process undertaken has been accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent, as a Form F1, and a copy was served on the Applicant. The Applicant was provided with an opportunity to respond to the application and advised that a failure to do so may result in his application being dismissed.

1. I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed. Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

<PR741729>

[1] [2021] FWCFB 875 [57].

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