James McBride v KW & BJ Globell Pty Ltd

[2014] FWC 6283

[2014] FWC 6283

FAIR WORK COMMISSION

DECISION

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

James McBride
v
KW & BJ Globell Pty Ltd
(U2014/10396)

COMMISSIONER HAMPTON ADELAIDE, 12 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 27 June 2014, Mr James McBride made an application for a remedy in relation to an alleged unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act). He was apparently dismissed from his employment with KW & BJ Globell Pty Ltd (the respondent) on 14 June 2014.

[2] The matter was listed for conciliation with a Fair Work Commission conciliator on 31 July 2014, however that process could not be conducted due to the jurisdictional objections raised by the Respondent that were to be dealt with prior to conciliation. Consequently, the matter was allocated to me for determination.

[3] The matter was the subject of a telephone directions conference before the Commission on 18 August 2014 at which time Mr McBride advised that he was unable to participate due to a family bereavement. The directions conference for the matter was subsequently rescheduled to 3 September 2014 and the notice of listing in relation to the rescheduled time was sent to Mr McBride via post and email. Furthermore, Commission staff placed at least three calls to Mr McBride’s mobile phone in an attempt to ensure that he had received and understood the amended notice of listing.

[4] On 3 September 2014, Mr McBride did not participate in the directions conference or make any contact with the Commission. The Respondent and their representative participated in the conference. During the conference, the Respondent made an oral application to dismiss the unfair dismissal application under s.399A(1)(a) of the FW Act. The Commission has accepted the verbal application and waived compliance with the Fair Work Rules 2013 to that extent.

[5] Following the conference, directions were issued by the Commission confirming the Respondent’s s.399A application and directing Mr McBride to file submissions and/or any other material in relation to the Respondent’s application to dismiss the unfair dismissal matter. Mr McBride was expressly advised that if he failed to comply with these directions by Tuesday 9 September 2014, his unfair dismissal application would be dismissed without further notice or hearing.

[6] Mr McBride has not subsequently filed any material or otherwise communicated any position to the Commission.

[7] 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

(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.”

[8] Mr McBride has been provided with a reasonable opportunity to advance his unfair dismissal application and has been given notice of the s.399A application and the intention of the Commission to deal with that matter in the absence of compliance with the directions issued on 3 September 2014. This follows the earlier process and I am satisfied that he has had an adequate and reasonable opportunity to be heard on the matter and has been afforded procedural fairness.

[9] Mr McBride did not file any material in opposition to the s.399A application to dismiss, there is an absence of factual disputes relevant to that application, and a conference was conducted by the Commission in the matter on 3 September 2014. Accordingly, I will now determine the application on the papers.

[10] The s.399A application was made by the respondent employer as contemplated by the FW Act. I am satisfied that Mr McBride has unreasonably failed to attend or participate in a conference conducted by the Commission. This satisfies the requirements of s.399A(1)(a), and in the absence of any explanation or any steps by Mr McBride to advance his matter, I consider that it is appropriate to exercise my discretion in all of the circumstances to dismiss the unfair dismissal application.

[11] Accordingly, Mr McBride’s unfair dismissal application is dismissed. An order 1 to that end is being issued in conjunction with this decision.

<Price code A, PR555275>

 1   PR555428.

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