DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Gary Stryers
v
Community Newspaper Group Limited
(U2018/10646)

DEPUTY PRESIDENT BINET

PERTH, 6 FEBUARY 2019

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

[1] On 15 October 2018, Mr Gary Stryers (Mr Stryers) filed an application (Application) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Community Newspaper Group Limited (Community Newspaper).

[2] On 24 December 2018, the parties were advised that Application had been listed for a conciliation conference before me on 8 January 2019. The employee with conduct of the matter from Community Newspapers contacted my chambers on 7 January 2019, advising that she had only just returned from leave and was located in Adelaide. The matter was relisted to be heard on 17 January 2019 due to the short notice to the respondent and so the matter could be conducted via video conference.

[3] On 15 January 2019 Mr Stryers contacted chambers requesting that the matter be relisted and provided Wednesday 23 January 2019 as a date available for listing.

[4] On 16 January 2019 a Notice of Listing was issued informing the parties that the Application was listed for a conciliation conference before Deputy President Binet at 10am on Wednesday 23 January 2019 (Conference). A video link between the FWC’s Perth premises and a room at the FWC’s Adelaide office was booked to facilitate the parties’ appearance in-person.

[5] On 21 January 2019, Mr Stryers emailed Chambers asking if the Conference could be moved to 2pm. That same day Chambers responded advising that the Conference could not be moved to 2pm as I had another listing at that time.

[6] On Wednesday 23 January 2019 Ms Caroline Bowden from Community Newspaper appeared in person at FWC Adelaide’s office.

[7] Mr Stryers failed to attend the Conference. My associate contacted Mr Stryers on his mobile phone number and left a message to contact the FWC. Mr Stryers has not contacted the FWC since.

[8] On 23 January 2019 Chambers emailed the parties noting that Mr Stryers had not appeared at the Conference or contacted the Commission. Community Newspaper was invited to apply by close of business Wednesday 23 January 2019 for the Application to be dismissed (Dismissal Application). Mr Stryers was invited to make written submissions in response to the Dismissal Application by close of business on Thursday 24 January 2019. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the Dismissal Application.

[9] On Wednesday 23 January 2019, Community Newspaper filed with Chambers and served on Mr Stryers an application for the matter to be dismissed pursuant to sections 399A of the FW Act on the grounds that Mr Stryers unreasonably failed to attend the conferences scheduled on 23 January 2019.

[10] On Wednesday 23 January 2019 a further email, was sent to the Mr Stryers attaching the Dismissal Application and reminding Mr Stryers that he had until close of business on Thursday 24 January 2019 to file submissions as to why the Application should not be dismissed.

[11] Section 399A of the FW 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

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).

(1) The FWC may exercise its power under subsection (1) on application by the employer.

(2) This section does not limit when the FWC may dismiss an application.”

[12] To date the FWC has not received any correspondence or written submissions from Mr Stryers.

[13] On the application of Community Newspaper 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 [PR704323] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court, Gary Stryers brought an application for an unfair dismissal remedy against Community Newspaper Group Limited. The applicant, a former employee, contended that his dismissal was unfair and sought a remedy under the Fair Work Act 2009. The employer opposed the application, arguing that the applicant failed to attend a mandatory conference with the Fair Work Commission, a requirement before pursuing an unfair dismissal claim. The court had to decide whether the application could proceed given the applicant's non-attendance at the conference and whether the failure to attend should result in the application being dismissed under section 399A of the Act.

The central legal issue before the court was whether the failure to attend the mandatory conference should result in the dismissal of the applicant's unfair dismissal claim. The court had to consider whether the failure to attend the conference was a valid ground for dismissing the application and whether there were any exceptional circumstances that could justify the non-attendance. Additionally, the court had to interpret and apply section 399A of the Fair Work Act, which deals with the dismissal of applications due to non-compliance with procedural requirements.

The court held that the failure to attend the mandatory conference did indeed provide a valid ground for dismissing the application under section 399A of the Fair Work Act. The court found that the applicant's non-attendance was not excused under the circumstances presented, and no exceptional circumstances were demonstrated to warrant a departure from the procedural requirement. The court concluded that the application should be dismissed as the mandatory procedural step of attending the conference was not fulfilled. The court emphasised the importance of adhering to the procedural requirements set out in the Act to ensure the proper administration of justice.

The final order of the court was that the application for an unfair dismissal remedy by Gary Stryers against Community Newspaper Group Limited was dismissed. The court explicitly stated that the dismissal of the application was pursuant to section 399A of the Fair Work Act due to the applicant's failure to attend the mandatory conference with the Fair Work Commission.

Gary Stryers v Community Newspaper Group Limited

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established