James Poke v Trustee for the Farmer Settlement Trust T/A Virginia Farm Produce

[2017] FWC 3199

[2017] FWC 3199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Poke
v
Trustee for the Farmer Settlement Trust T/A Virginia Farm Produce
(U2017/3415)

COMMISSIONER PLATT ADELAIDE, 13 JUNE 2017

Application for an unfair dismissal remedy – failure to participate in proceedings – s.399A application – application dismissed.

[1] This decision deals with an application by the Trustee for the Farmer Settlement Trust T/A Virginia Farm Produce (VFP), pursuant to s.399A of the Fair Work Act 2009 (the Act) to dismiss an unfair dismissal application lodged by Mr James Poke on 29 March 2017.

[2] Mr Poke’s application was listed for conciliation by the Commission on 3 May 2017 but did not proceed as Mr Poke did not attend.

[3] On 11 May 2017, the parties were sent a notice that the matter was listed for a directions conference via telephone at 11.00am on 22 May 2017. On 22 May 2017, Mr Farmer attended on behalf of VFP. Mr Poke did not attend, despite follow up by telephone and email.

[4] On 22 May 2017, Mr Poke wrote an email to the Commission explaining that he is working in the middle of the desert with minimal internet connectivity and no phone reception, he further stated “Sorry but i (sic) will not be able to do this”.

[5] On 22 May 2017, the parties were sent a notice that the matter would be listed for a directions conference via telephone at 2.00pm on 25 May 2017. Neither party attended the conference.

[6] On 25 May 2017, my Associate sent an email to the parties confirming that VFP must confirm by no later than 9.00am 29 May 2017 whether it wishes to make a s.399A application and that Mr Poke should indicate whether he wishes to proceed with his unfair dismissal application, or alternatively to discontinue it by filing a form F50 Notice of Discontinuance.

[7] At 8.31am on 29 May 2017, the Commission received an s.399A application from VFP requesting that the unfair dismissal application of Mr Poke be dismissed on the basis that he has unreasonably failed to attend a FWC conference or hearing relating to the application.

[8] The matter was listed for conference via telephone at 2.00pm on 9 June 2017. Mr Farmer attended on behalf of VFP. Mr Poke did not attend, despite follow up by telephone.

[9] At 2.05pm the matter proceeded in the absence of Mr Poke. Mr Farmer reiterated his s.399A application and asked me to dismiss the matter as a result of the failure to attend by Mr Poke.

[10] Section 399A 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.”

Findings

[11] The Commission’s communications were directed to Mr Poke using the contact details provided within his application. It is clear to me that the failure of Mr Poke to respond to the directions and attend conferences satisfies the requirements of s.399A(1)(a) and (b) of the Act.

[12] In my view, Mr Poke’s conduct is unreasonable. In short, he has failed to prosecute his application after it was lodged.

[13] Mr Poke’s application is dismissed pursuant to s.399A of the Act. An Order¹ to this effect will be issued.

COMMISSIONER

Appearances:

Mr M.Farmer on behalf of the Respondent.

Hearing details:

2017.

Adelaide:

9 June.

1 PR593679

Printed by authority of the Commonwealth Government Printer

<Price code A, PR593678>