Derek Cooze v Clough
[2025] FWC 739
•28 MARCH 2025
| [2025] FWC 739 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Derek Cooze
v
Clough
(U2024/14651)
| DEPUTY PRESIDENT BINET | PERTH, 28 MARCH 2025 |
Application for an unfair dismissal remedy. Application by the Respondent pursuant to s 399A of the Fair Work Act – Application dismissed.
On 5 December 2024, Mr Derek Cooze (Cooze) 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 Clough (Clough).
On 20 December 2024, Clough filed a Form F3 - Employer response to unfair dismissal application raising the following jurisdictional objections:
a.the Application is out of time;
b.the dismissal was a case of genuine redundancy; and
c.Mr Cooze’s earned more than the high income threshold and his employment was not covered by an Agrement or an Award.
The Application was allocated to my Chambers for determination.
Directions for the filing of materials in advance of the Hearing were issued to the parties on 12 February 2025 (Directions).
On 12 February 2025 the parties were informed that a conciliatory conference to explore the resolution of the matter would be held on 26 February 2025 (Conference). The parties were issued with Teams Link to join the Conference remotely.
On 20 February 2025 Mr Cooze filed materials pursuant to the Directions.
Mr Cooze failed to attend the Conference on 26 February 2025 in person or virtually. He could not be contacted by Chambers. Mr Cooze did not seek an adjournment prior to the commencement of the Conference.
On 27 February 2025, Chambers received an email from Mr Cooze stating as follows:
“I am currently overseas for my daughter’s wedding and have had limited access to communications until today and have a time difference impacting attendance…”
On 28 February 2025, Chambers emailed Mr Cooze noting as follows:
“On 21 February 2025 Mr Cooze filed submissions with the FWC in relation to his out of time Application by email. Mr Cooze therefore had access to his emails since receipt of the Notice of Listing. Mr Cooze did not attend the conference and did not seek an adjournment before the commencement of the conference. Directions to attend a conference are mandatory.”
On 5 March 2025, Clough made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Cooze failed to attend the Conference (Dismissal Application).
Mr Cooze was invited to file submissions and evidence as to why the Application should not be dismissed by noon on Friday 7 March 2025. Chambers advised Mr Cooze that if he did not file submissions and evidence by noon Friday 7 March 2025, the Application would be dismissed pursuant to section 399A of the FW Act.
No submissions or evidence were filed in relation to the Dismissal Application by Mr Cooze by noon on Friday 7 March 2025, or since.
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.”
Mr Cooze failed to attend the conference on 26 February 2025. As at the date of this decision, Mr Cooze has still not filed any materials in response to the Dismissal Application. Mr Cooze has not sought an extension to file his materials in response to the Dismissal Application. I am satisfied that Mr Cooze has unreasonably failed to comply with directions of the FWC relating to this Application.
In relation to Mr Cooze’s application for an extension of time to file his materials I note the following:
Mr Cooze was notified of his dismissal on 22 October 2025. The dismissal did not take effect until 25 October 2025.
The Application was filed twenty days late.
He has provided an explanation for some but not all of the delay.
Mr Cooze’s contract of employment indicates that he was engaged pursuant to a fixed term contract to perform work which was expected to be completed in July 2024. In his contract he acknowledgement that he had no ongoing expectation of employment beyond this assignment.
The contract provided for him to perform work exclusively in Papua New Guinea.
Clause 18.1 of the contract provides that is governed by the laws of Papua New Guinea and that the parties agree to submit to the exclusive jurisdiction of the courts of Papua New Guina.
On the application of Clough and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An Order to this effect will be issued with this decision.[1]
DEPUTY PRESIDENT
[1] PR785219.
Printed by authority of the Commonwealth Government Printer
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