Dean Colley v Steggles Foods Mt Kuring-Gai Pty Limited

[2020] FWC 1865

[2020] FWC 1865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean Colley
v
Steggles Foods Mt Kuring-Gai Pty Limited
(U2020/894)

VICE PRESIDENT CATANZARITI SYDNEY, 8 APRIL 2020

Application for an unfair dismissal remedy.

[1] On 28 January 2020, Dean Colley (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, Steggles Food Mt Kuring-Gai Pty Limited.

[2] The application was listed before a Commission staff conciliator on 24 February 2020. The applicant did not attend the conciliation. His representative, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) advised the conciliator that it had been unable to contact him for over a week at that point. It asked that the matter be referred for arbitration in the absence of any instructions from the applicant.

[3] The application was then allocated to me. My chambers sent correspondence to the applicant on 5 March 2020, directing him to advise us by 4:00 pm on 12 March 2020 whether he still pressed his application. However, we received no response from the applicant by that time.

[4] On 12 March 2020, the AMWU emailed my chambers the following:

‘I refer to the letter from the Vice President dated 5 March 2020.

The AMWU has attempted to contact Mr Colley for instructions on a number of occasions since the receipt of that letter.  To date we have not received any instructions in relation to whether he wants to continue with the matter.

We note that the Vice President may schedule a non-compliance hearing as a result of a lack of instructions from Mr Colley.  The AMWU requests that we be notified of the listing of any such hearing.’

[5] The application was listed for non-compliance hearing on 23 March 2020. Ms Presdee of the AMWU, Ms Takla of the respondent and Mr Waterhouse of the respondent attended the hearing, but the applicant himself did not. Ms Presdee confirmed that she had still had no instructions from the applicant, despite numerous attempts to contact him, and therefore could not put a case as to why the application should not be dismissed. Ms Takla and Mr Waterhouse submitted that the application should be dismissed.

[6] Section 399A of the 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 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.

[7] The applicant has unreasonably failed to attend the non-compliance hearing and to comply with my direction to advise whether he presses his application. Accordingly, I have decided to dismiss the application pursuant to ss.399A(1)(a) and (b) of the Act. An order to this effect will issue with this decision.

VICE PRESIDENT

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