Jaidon Nicholson v Rollsec Pty Ltd
[2023] FWC 459
•23 FEBRUARY 2023
| [2023] FWC 459 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jaidon Nicholson
v
Rollsec Pty Ltd
(U2022/10658)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 23 FEBRUARY 2023 |
Application for an unfair dismissal remedy – Application dismissed.
Overview
This decision concerns an application made under s. 399A of the Fair Work Act 2009 (FW Act) by Rollsec Pty Ltd (Rollsec) seeking that the Fair Work Commission (the Commission) dismiss an application for an unfair dismissal remedy made by Mr Jaidon Nicholson (the Applicant). The unfair dismissal application was made on 5 November 2022 and the Applicant alleged that he was dismissed by Rollsec on 17 October 2022. On 15 November 2022, Rollsec filed a response to the application raising a jurisdictional objection on the basis that the Applicant was not dismissed but “quit” his employment, on 17 October 2022.
On 20 December 2022, the application was allocated to me for determination. On 21 December 2022, I issued Directions for the hearing and determination of both the jurisdictional objection and the substantive merits of the application. The Directions required as follows:
· By 4.00 pm AEST (QLD) on Wednesday, 11 January 2023, the Applicant was to file and serve an outline of submissions and a witness statement from any witnesses he intended to rely upon at the hearing in relation to his assertion that he was dismissed within the meaning of s. 386(1) of the FW Act, the merits of his unfair dismissal application and the remedy he sought.
· By 4.00 pm AEST (QLD) on Wednesday, 11 January 2023, Rollsec was to file and serve an outline of submissions and a witness statement from any witnesses it intended to rely upon at the hearing in support of its assertion that the Applicant had resigned from his employment voluntarily and was not dismissed on Rollsec’s initiative.
· By 4.00 pm AEST (QLD) on Wednesday, 18 January 2023, both the Applicant and Rollsec were to file and serve their respective material in reply to the material filed by the other party.
On 11 January 2023, Rollsec filed a Form F4 objection to unfair dismissal application indicating that, aside from the jurisdictional objection that the Applicant was not dismissed, it also intended to raise a jurisdictional objection on the basis that the Applicant commenced employment with Rollsec on 12 April 2022 and due to various periods of unpaid leave taken by the Applicant, he had not completed the 6-month minimum employment period to be protected from unfair dismissal pursuant to ss. 382 and 383 of the FW Act. Also on 11 January 2023, Rollsec filed outlines of submissions in relation to the jurisdictional objections as well as the merits of the unfair dismissal application. In support of its position, three witness statements were filed by Rollsec. While Rollsec complied with the Directions of 21 December 2022, the Applicant did not file any material by 4.00pm on 11 January 2023 as directed, nor did he seek an extension of time to comply with the Directions.
At 6.22pm on 11 January 2023, my Chambers corresponded with the parties indicating that the Applicant had yet to comply with the Direction by filing his material. Notwithstanding the Applicant’s non-compliance and due to the lodgement of a Form F4 by Rollsec, further Directions were issued on 11 January 2023 requiring the Applicant to file an additional outline of submissions and witness statement setting out his position in response to the assertion that he did not meet the 6-month minimum employment period. This material was directed to be filed by 4.00pm Wednesday, 18 January 2023. No response or material was received from the Applicant by 18 January 2023.
On 31 January 2023, I caused correspondence to be sent to the parties indicating that the Applicant had not filed any material by 11 January or 18 January 2023 in accordance with the Directions and was therefore non-compliant. I directed the Applicant to advise, by 12.00pm Thursday, 2 February 2023, whether he intended to continue with his unfair dismissal application. If he so intended, he was to file a written statement together with any supporting evidence providing a reasonable explanation for his failure to comply with the Directions and indicating a date and time by which he intended to file his material, which should be no later than 4.00pm Friday, 3 February 2023. The Applicant was also notified that his non-compliance may provide grounds for Rollsec to seek that his application be dismissed pursuant to s. 399A of the FW Act.
No response or material was received from the Applicant by 2 or 3 February 2023. On 6 February 2023, my Associate informed the parties that I had decided to list the matter for a hearing at 9.00am on 10 February 2023 to address the Applicant’s non-compliance. The Applicant was again informed that if he did not attend the hearing, Rollsec may have grounds to make an application under s. 399A of the FW Act and his unfair dismissal application may be dismissed. An SMS message was also sent to the Applicant on 9 February 2023 reminding him of the hearing on 10 February 2023.
On 10 February 2023, multiple attempts were made at the commencement time of the hearing to contact the Applicant on the phone number he provided in his Form F2 application. However, the Applicant could not be reached as the calls went directly to his voicemail. I conducted the non-compliance hearing regardless and Rollsec was represented by its Accounts Manager, Ms. Michelle Beaky. I informed Ms Beaky that there was no appearance from the Applicant and in circumstances where the Applicant did not comply with Directions or attend a hearing before the Commission, Rollsec was entitled to make an application under s. 399A to seek a dismissal of the Applicant’s unfair dismissal application.
On 10 February 2023, Rollsec emailed my Chambers requesting that “this unfair dismissal application be dismissed pursuant to Section 399A of the Fair Work Act 2009”. On 13 February 2023, Rollsec provided a brief outline of submissions stating that it sought to rely on ss. 399A(1)(a) and (1)(b) of the FW Act on the basis that the Applicant unreasonably failed to attend a hearing by telephone on 10 February 2023 and unreasonably failed to comply with a direction of the Commission by 11 January, 18 January, 2 February and 3 February 2023. The Applicant was given a further opportunity to provide a written response to the s. 399A application by 17 February 2023. The Applicant was also informed that if he did not respond, his application for an unfair dismissal remedy may be dismissed without further notice. No response was received from the Applicant.
Legislation
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.”
The power of the Commission to dismiss an application under s. 399A of the Act is discretionary. The exercise of the power is predicated on the Commission being satisfied of the unreasonableness of the Applicant’s conduct in relation to the stipulated matters: failing to attend a conference or hearing; failing to comply with a direction or order of the Commission; or failing to discontinue an application after a settlement agreement has been concluded. As stated by Rollsec, its application under s.399A is based on subsections (1)(a) and (b).
Consideration
I am satisfied that the Applicant has unreasonably failed to comply with the Directions issued on 21 December 2022, 11 January 2023 and 31 January 2023 relating to his application and has unreasonably failed to attend the hearing on 10 February 2023. At the date of this Decision, the Applicant has breached the Directions by failing to file any material or seek any extension of time to comply. The Applicant has provided no explanation for his failure to comply and has been warned that his application may be dismissed for non-compliance. In contrast, Rollsec has been diligent in providing its material in advancing its objections and defending the application.
In addition, the Applicant has provided no explanation for his failure to attend the hearing on 10 February 2023 notwithstanding attempts to remind him of the date and time of hearing by both email and SMS message and attempts to contact him by his phone number on the day of the hearing. The Applicant has not provided any material or information against the exercise of the discretion to dismiss his application, nor has he filed any material in support of his substantive application. By failing to comply with the Directions or attend a hearing, I am satisfied that the Applicant has failed to take the opportunity to prosecute his case, and this has caused unnecessary inconvenience to the Respondent. In all the circumstance, I consider it appropriate to exercise my discretion, in favour of the Respondent, to dismiss the Applicant’s application for an unfair dismissal remedy. An Order to that effect will issue separately.[1]
DEPUTY PRESIDENT
[1] PR751131.
Printed by authority of the Commonwealth Government Printer
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