Jake Green v Lindsay Constructions NSW Pty Ltd

[2023] FWC 3134

[2023] FWC 3134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jake Green
v

Lindsay Constructions NSW Pty Ltd

(U2023/9801)

COMMISSIONER CRAWFORD SYDNEY, 28 NOVEMBER 2023

Application for an unfair dismissal remedy – application dismissed

1. On 9 October 2023, Jake Green (Mr Green) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Lindsay Constructions NSW Pty Ltd (Lindsay Constructions).

1. Mr Green’s application states he was dismissed on 5 September 2023. As a result, the application was filed outside the 21-day period prescribed in s.394(2) of the FW Act and would require the granting of an extension by the Commission pursuant to s.394(3) of the FW Act.

1. On 1 November 2023, I listed the matter for determinative conference/hearing via Microsoft Teams on 23 November 2023 in relation to whether an extension of time should be granted and issued directions for the filing of material. I directed Mr Green to file any materials on which he sought to rely in relation to the extension of time issue by 5.00pm on Friday, 17 November 2023. Mr Green did not file any materials in compliance with the directions.

1. At 5.31pm on Friday, 17 November 2023, my Chambers wrote to Mr Green, noting his non-compliance with the directions and providing a brief further period for Mr Green to file materials or request an extension to do so. Mr Green did not file further materials or reply to that email.

1. Mr Green did not attend the determinative conference/hearing before me on 23 November 2023 and he was not able to be contacted by Chambers by phone. Mr Green also did not reply to an email sent by Chambers shortly after the proceedings were due to commence requesting Mr Green’s urgent attendance and providing a link to join.

1. On 23 November 2023, Lindsay Constructions filed an application under s.399A of the Fair Work Act 2009 (Cth) (FW Act) using the Commission’s Form F1.

1. Later on 23 November 2023, I directed Mr Green to file any material in response to Lindsay Constructions’ application by 5pm on Monday, 27 November 2023. That email attached the Form 1 dismissal application and noted that I intended to determine the application for dismissal on the filed material. Mr Green did not file any material or make any contact with Chambers.

1. 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.

…

(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.”

1. The relevant principles to consider Lindsay Construction’s application under s.399A were helpfully summarised in Lockyear v Graeme Cox[2021] FWCFB 875 (Lockyear) at [57]:

“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”

1. Section 399A(2) is obviously satisfied by Lindsay Construction’s application.

1. Similarly, s.399A(1)(a) is satisfied by Mr Green unreasonably failing to attend the determinative conference/hearing on 23 November 2023. My chambers made two phone calls and sent an email to Mr Green requesting a response in relation to his non-attendance at the determinative conference/hearing. Those communications provided both the Chambers phone number and email address for Mr Green to respond. They also informed Mr Green that the Respondent had joined the Teams proceedings and the parties were awaiting his attendance. Mr Green did not respond or provide any explanation for his failure to attend the determinative conference/hearing. He did not respond to the s.399A application to address his non-attendance when provided the opportunity. In these circumstances, I find Mr Green’s failure to attend was unreasonable.

1. Section 399A(1)(b) is also satisfied because Mr Green failed to comply with a direction to file material in support of the granting of an extension. I find this to be unreasonable in circumstances where Chambers sent Mr Green an email reminding him of the filing deadline and providing additional time. The jurisdictional pre-requisites are met for Mr Green’s application to be dismissed (per Lockyear at [55]) and it is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their ‘day in court’ (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

1. Mr Green has failed to file material in accordance with directions and failed to attend a determinative conference/hearing on 23 November 2023. Mr Green has made no response to any communications from Chambers including to the s.399A application, despite numerous opportunities being provided.

1. In these circumstances, I see no utility in allowing Mr Green’s claim to continue and I therefore grant Lindsay Construction’s application under s.399A.

1. An order giving effect to this decision will be issued separately in PR768759.

COMMISSIONER

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

<PR768758>