Dennis Garth v Zinfra Contracting Pty Ltd T/A Zinfra

[2021] FWC 67

[2021] FWC 67

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dennis Garth
v
Zinfra Contracting Pty Ltd T/A Zinfra
(U2020/13727)

DEPUTY PRESIDENT CROSS SYDNEY, 7 JANUARY 2021

Application for an unfair dismissal remedy - s.399A application.

[1] On 16 October 2020, Mr Dennis Leon Garth (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), alleging that he had been unfairly dismissed from his employment by Zinfra Contracting Pty Ltd T/A Zinfra (the Employer).

[2] This decision concerns an application made by the Employer to have the application dismissed pursuant to s.399A of the Act.

Background

[3] The matter was the subject of an unsuccessful conciliation conference conducted by a Fair Work Commission (Commission) staff conciliator on 4 November 2020. As the matter remained unresolved following the conciliation conference, it was allocated to my Chambers the following day.

[4] On 6 November 2020, my Chambers issued a Notice of Listing and Directions to the parties. The Notice of Listing and Directions of 6 November 2020 scheduled the matter for an initial Conference before me on 20 November 2020. This Conference occurred, however, the matter remained unable to be resolved between the parties. The parties were, therefore, required to comply with the Directions of 6 November 2020 which provided filing dates for their respective materials. The Applicant was required to file his materials first in the matter and was required to do by no later than 4:00pm on 4 December 2020.

[5] The Applicant failed to submit his materials in accordance with directions. At 4:22pm on 4 December 2020, the Employer contacted my Chambers by email to query whether any materials had been filed by the Applicant. On 7 December 2020, my Chambers sent a reply email to the parties, advising that the Applicant’s materials were now overdue and requesting a response from him. On 11 December 2020, the Employer emailed my Chambers advising that the Applicant’s materials remained outstanding. On 14 December 2020, my Associate attempted to contact the Applicant by the telephone number listed on his application materials without success. On the same day, an email was sent from my Chambers to the Applicant requesting that he contact Chambers within 48 hours.

[6] On 18 December 2020, the Employer emailed my Chambers requesting that the matter be dismissed on the basis of the unreasonable failure of the Applicant to comply with the Directions of the Commission. My Chambers replied that day, setting aside the Directions in the matter and reprogramming the matter for a Hearing on the s.399A application.

[7] Directions in the s.399A were issued to the parties on 21 December 2020. The s.399A Hearing was listed at 10:00am on 7 January 2021. In accordance with the Directions, the Employer filed and served a Form F1 in support of its application on 28 December 2020. Contrary to directions, no materials were submitted on behalf of the Applicant.

[8] At 8:48am on the morning of 7 January 2021, the Applicant emailed my Chambers in the following terms:

“Hello all,

I do not have a phone, computer or an internet connection therefore I am unable to participate in this morning's hearing, Regards.”

[9] At 8:54am on the same morning, my Chambers sent the following reply email to the Applicant:

“Dear Mr Garth

Chambers queries how you were able to send the below correspondence without access to a phone, computer or the internet.

Please be advised that your attendance at this morning’s proceedings is required.

Failure to attend may result in your claim being dismissed.

Kind regards”

[10] Despite several attempts to connect the Applicant to the Microsoft Teams meeting using the mobile phone number included in his application materials and referenced in his email signature in previous email correspondence, the Applicant failed to attend the Hearing. The Employer was represented by Ms B Taylor, Senior Industrial Relations Advisor, with her was Mr I Carter.

Consideration

[11] 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.”

[12] Despite attending and corresponding with the Commission at the early stages of the application, no materials have been provided by the Applicant with respect to either the substantive application or the s.399A application to date. The Applicant failed to attend the s.399A Hearing and explain why the Application should not be dismissed.

[13] In the circumstances, I am satisfied that the Applicant has unreasonably failed to comply with Directions and to attend before the Commission. The Applicant was on notice that his failure to comply with Directions of the Commission may result in the substantive application being dismissed. His email on the morning of 7 January 2021, simply advised the Commission the Applicant would not be attending the Hearing to determine whether such an order should be made. The email did not express any desire on the part of the Applicant to have the Application remain on foot.

Conclusion

[14] At the request of the Employer, the Application for an unfair dismissal remedy is dismissed in accordance with s.399A of the Act. An Order to this effect [PR726030] has been issued concurrently with this decision.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant
Ms B Taylor and Mr I Carter, appeared for the Employer

Hearing details:

2021;
Sydney (via Microsoft Teams);
7 January

Printed by authority of the Commonwealth Government Printer

<PR726028>