Dean Jacob v Taylor'd Shipping Solutions Pty Ltd

[2022] FWC 949

[2022] FWC 949

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dean Jacob
v

Taylor'd Shipping Solutions Pty Ltd

(U2021/12049)

DEPUTY PRESIDENT BINET PERTH, 19 MAY 2022

Application for an unfair dismissal remedy

1. On 21 December 2021, Mr Dean Jacob (Mr Jacob) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Taylor’d Shipping Solutions Pty Ltd (Taylor’d).

1. On 27 January 2022, Taylor’d filed a Form F3 - Employer response to unfair dismissal application raising the jurisdictional objection that Mr Jacob was not dismissed

1. The Application was allocated to my Chambers for determination.

1. On 6 April 2022, a Notice of Listing was issued to the parties notifying them that the Application had been listed for a conciliation conference via Microsoft Teams at 12 noon on 14 April 2022 (Conference).

1. On 11 April 2022, Chambers sent an email to the parties notifying them that leave had been granted to Taylor’d to be represented at the Conference.  The email again confirmed the date and time of the Conference and informed parties that they should join the Conference 15 minutes before the listed commencement time.

1. Mr Jacob did not join the Conference by the listed start time of the Conference.  My Associate called the telephone number Mr Jacob had provided twice but the call was not answered.  My Associate then sent him an email informing him that the Conference had commenced and that he was required to call Chambers urgently.  

1. Mr Jacobs did not contact Chambers on 14 April 2022 or since.

1. On 14 April 2022 Taylor’d made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Jacob failed to attend a conference conducted by the FWC (Dismissal Application).

1. Mr Jacob was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) on Thursday 21 April 2022. Chambers advised Mr Jacob that if he did not file submissions and evidence by 4pm (AWST) Thursday 21 April 2022 the Application would be dismissed pursuant to section 399A of the FW Act.

1. No submissions or evidence were filed in relation to the Dismissal Application by Mr Jacob by 4pm (AWST) Thursday 21 April 2022, or since.

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.”

1. As at the date of this decision Mr Jacob has still not filed any materials in response to the Dismissal Application. Mr Jacob has not sought an extension to file his materials in response to the Dismissal Application. I am satisfied that Mr Jacob has unreasonably failed to attend a conference conducted by the FWC. On the Application of Taylor’d and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

1. An Order[1] to this effect was issued on 26 April 2022.

DEPUTY PRESIDENT

[1] Print PR740636.

Printed by authority of the Commonwealth Government Printer

<PR740635>