James Buckley v Sydney Trains

[2017] FWC 3658

[2017] FWC 3658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Buckley
v
Sydney Trains
(U2017/5072)

COMMISSIONER RIORDAN SYDNEY, 21 JULY 2017

Application for an unfair dismissal remedy.

[1] Mr James Buckley was employed by Sydney Trains and its predecessor, between July 1990 and 15 March 2017.

[2] A Conciliation/Directions Conference was convened on 13 June 2017. Mr Buckley failed to attend.

[3] My Associate sent Mr Buckley an email that same morning advising Mr Buckley that he had 7 days to provide a reasonable excuse for his non attendance at today’s Conference or his unfair dismissal application may be dismissed.

[4] Mr Buckley responded on 20 June 2017, sincerely apologising for his non attendance, advising of his confusion in relation to the process and the unfortunate withdrawal of his legal representation due to a possible conflict of interest.

[5] As a result, the Commission reconvened the Conciliation/Directions Conference for 10 July 2017. Mr Buckley failed to attend this conference.

[6] On 18 July 2017, Sydney Trains made application for Mr Buckley’s application to be dismissed.

Relevant Legislation

[7] Section 399A of the Fair Work Act 2009 (Cth)(‘the Act’) states:-

“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.”

Consideration

[8] Mr Buckley has now failed to attend two conferences. The Commission has received no communication from Mr Buckley as to why he failed to attend the conference on 10 July 2017. I am satisfied that Mr Buckley has exhausted his statutory entitlement to a ‘fair go’.

[9] After considering all of the circumstances in this matter, I have decided to dismiss Mr Buckley’s unfair dismissal application due to his on-going non attendance at Commission proceedings in accordance with section 399A(1)(a) of the Act.

COMMISSIONER

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