Jamie-Lee Pemberton-Parker v NRMA Limited
[2023] FWC 2400
•18 SEPTEMBER 2023
| [2023] FWC 2400 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jamie-Lee Pemberton-Parker
v
NRMA Limited
(U2023/5542)
| COMMISSIONER CRAWFORD | SYDNEY, 18 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – application dismissed
On 21 June 2023, Jamie-Lee Pemberton-Parker (Mr Pemberton-Parker) 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 NRMA Limited (NRMA).
Mr Pemberton-Parker’s application states he was dismissed on 24 May 2023. As a result, the application was filed outside the 21-day 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.
On 1 September 2023, I issued directions for the filing of material in relation to whether an extension of time should be granted. Mr Pemberton-Parker did not comply with the directions. The NRMA has complied with the directions.
NRMA requested a conciliation conference be arranged, despite the application being filed outside the 21-day period. I agreed to this request and listed the matter for conference on 8 September 2023.
Mr Pemberton-Parker did not attend the conciliation conference before me on 8 September 2023 and he was not able to be contacted by Chambers. Representatives of NRMA attended the conference.
On 12 September 2023, Mr Pemberton-Parker emailed Chambers indicating he was not aware of the conference. Mr Pemberton-Parker’s email also stated: “I am unable to attend any hearing via online or in person due to full-time work commitments”.
On 13 September 2023, NRMA filed an application under s.399A of the Fair Work Act 2009 (Cth) (FW Act) using the Commission’s Form F1.
On 13 September 2023, I directed Mr Pemberton-Parker to file any material in response to NRMA’s application by 5pm on Friday, 15 September 2023. Mr Pemberton-Parker did not file any material or make any contact with Chambers.
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.”
The relevant principles to consider NRMA’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.”
Section 399A(2) is obviously satisfied by NRMA’s application. Similarly, s.399A(1)(a) is satisfied by Mr Pemberton-Parker’s failure to attend the conference on 8 September 2023. Section 399A(1)(b) is also satisfied because Mr Pemberton-Parker failed to comply with a direction to file material in support of the granting of an extension, despite Chambers sending an email to remind him, and providing additional time. The jurisdictional pre-requisites are met for Mr Pemberton-Parker’s application to be dismissed (per Lockyear at [55]) and it is a matter of discretion whether I do so.
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]).
Mr Pemberton-Parker has failed to file material in support of an extension of time being granted and failed to attend a conference on 8 September 2023. Mr Pemberton-Parker has now confirmed he does not intend to attend any hearings in relation to the application, either online or in person.
In these circumstances, I see no utility in allowing Mr Pemberton-Parker’s claim to continue and I therefore grant NRMA’s application under s.399A.
An order giving effect to this decision will be issued separately in PR766331.
COMMISSIONER
Determined on the papers.
Printed by authority of the Commonwealth Government Printer
<PR766330>
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