Dean Kellar v Solo Waste Management Company

[2023] FWC 1572

[2023] FWC 1572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Dean Kellar
v

Solo Waste Management Company

(U2023/3634)

COMMISSIONER LEE MELBOURNE, 29 JUNE 2023

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

1. On 27 April 2023, Mr Dean Kellar (the Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was dismissed from his employment with Solo Waste Management Company (the Respondent) on 21 April 2023.

1. On 6 June 2023, my Chambers sent an email to parties providing the Notice of Listing and Directions. The email provided that a Mention/Conference would be conducted via Microsoft Teams at 2.00pm Wednesday 14 June 2023.

1. The Notice of Listing required the Applicant to provide the names and direct contact numbers of those individuals attending to [email protected] at least 24 hours prior to the scheduled start time. The Applicant did not supply appearances. My Chambers called the Applicants mobile number, as provided in his Form F2, three times and left one voicemail on 14 June 2023. The Applicant did not answer or return any of the calls.

1. The Conference/Mention took place with the Respondent only attending. The Respondent applied to have the application dismissed pursuant to s.399A on the grounds the Applicant unreasonably failed to attend a Conference/Mention held by the Commission.

1. On the 14 June, my Chambers wrote to the Applicant directing him to file with the Commission, and serve on the Respondent, submissions providing reasons as to why the Commission should not dismiss his application, including evidence or other documentary material he had to support any reasons given. The directions required any relevant material to be provided by no later than 4:00pm Wednesday, 21 June 2023.

1. The correspondence also included the following:

“If you do not respond by 4:00pm on Wednesday, 21 June 2023, Commissioner Lee

proposes to dismiss your application without further notice.”

1. To date, the Applicant has not filed any material, or otherwise contacted the Commission. 

1. 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.”

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss pursuant to s.399A of the Act, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant failed to attend a Mention/Conference conducted by the Commission, and has failed to comply with directions of the Commission. For these reasons, I have determined to exercise my discretion under s.399A(1)(a) of the Act and dismiss the Applicant’s application.

1. The Applicant’s application for remedy from unfair dismissal is dismissed. An order[1] will be issued concurrently with this decision.

COMMISSIONER

[1] PR763736.

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