Jacob Napthine v Oakdene Wines Pty Ltd

[2023] FWC 2818

[2023] FWC 2818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jacob Napthine
v

Oakdene Wines Pty Ltd

(U2023/7210)

DEPUTY PRESIDENT COLMAN MELBOURNE, 26 OCTOBER 2023

Application under s 399A – failure to comply with directions – application dismissed

1. Earlier today, in a decision delivered on transcript, I dismissed an application made by Mr Jacob Napthine under s 394 of the Fair Work Act 2009 (Act) in which he contended that he had been unfairly dismissed by Oakdene Wines Pty Ltd (Oakdene). I indicated to the parties that I would publish my reasons, which are as follows.

1. On 20 September 2023, I issued directions which required Mr Napthine to file an outline of argument, statements of evidence, and a document list by 5 October 2023. He did not do so. On 16 October 2023, I wrote to Mr Napthine granting him an extension until 17 October 2023. No materials were filed. I listed the application for a non-compliance hearing on Friday 20 October 2023.

1. On 19 October 2023, Oakdene applied under s 399A for the Commission to dismiss Mr Napthine’s application on the basis that he had unreasonably failed to comply with the Commission’s directions, and had unreasonable failed to attend a conciliation conference with a conciliator of the Commission on 13 September 2023. I advised the parties that I would hear Oakdene’s s 399A application at the non-compliance hearing.

1. At the hearing, Mr Napthine said that he had not seen any of the correspondence from the Commission, despite this having been sent to the email address that he provided in his F2 application. This was not a satisfactory explanation. However, Mr Napthine was apologetic, and said that he wanted to continue his application. He undertook to lodge his materials by Monday 23 October 2023. I decided to give Mr Napthine another chance, on the basis that he would file his materials as promised. I then issued revised directions requiring Mr Napthine to lodge his materials by 5.00pm on 23 October 2023.

1. Mr Napthine did not comply with the revised directions. At 6.10pm on 23 October 2023, Mr Napthine sent an email message to chambers stating that he had been unable to complete the paperwork and that he did not understand some of it. He said that he had been suffering from depression and anxiety for some years and was stressed after having been dismissed by Oakdene, and then having commenced a new job.

1. On 24 October 2023, Oakdene lodged a second application under s 399A asking the Commission to dismiss the unfair dismissal application for the additional reason that he had failed to comply with the revised directions. I listed the application for hearing on 26 October 2023. At the hearing, Mr Napthine said that he had found it more difficult than he had expected to complete his materials.

1. Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant has unreasonably failed to attend a conference or hearing held by the Commission in relation to the application (s 399A(1)(a)) or has unreasonably failed to comply with a direction or order of the Commission relating to the application (s 399A(1)(b)).

1. Mr Napthine failed to comply with my directions of 20 September 2023 and my further directions of 16 October 2023. He failed to comply with the revised directions of 20 October 2023. It is clear from the Commission’s records that he did not attend an earlier conciliation conference conducted by a conciliator of the Commission on 13 September 2023. Mr Napthine has not provided a reasonable explanation for these failures. I conclude that they were unreasonable. In particular, it was unreasonable that Mr Napthine failed to comply with the revised directions of 20 October 2023, after having undertaken to do so. Mr Napthine’s statement that he has depression and anxiety is not supported by medical evidence. He did not mention these matters at the first non-compliance hearing. I am not satisfied that Mr Napthine’s mental health provides a reasonable explanation for his failure to comply with directions, including the revised directions of 20 October 2023. Nor is Mr Napthine’s statement that he found it difficult to prepare his materials a reasonable explanation for his failure to comply with the revised directions.

1. My discretion to dismiss the unfair dismissal application under s 399A has been enlivened. I consider it appropriate to exercise the discretion in this case. The Commission issues directions in relation to unfair dismissal applications in order to facilitate a fair and transparent determination of those matters. Mr Napthine has failed to engage with the process that relates to his own application.

1. Mr Napthine’s application is dismissed.

DEPUTY PRESIDENT

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