Jaron Davies v Ben Burke
[2022] FWC 1467
•9 JUNE 2022
| [2022] FWC 1467 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jaron Davies
v
Ben Burke
(U2022/1441)
| DEPUTY PRESIDENT LAKE | BRISBANE, 9 JUNE 2022 |
Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed
Mr Jaron Davies (the Applicant) lodged an Application (Application) with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Ben Burke (the Respondent). Mr Jamie McPherson of HBA Legal for the Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.
Legislation
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.
Note 1: for other 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.”
Procedural background
The matter was initially listed for a staff conciliation on 6 April 2022 by telephone to see if the matter could be resolved between the parties. On 1 April 2022, the Commission contacted the Applicant on the number specified in his From F2 to confirm his contact information. The Applicant did not answer the call and a voice message was left requesting he return the call.
On 4 April 2022, the Applicant emailed the Commission requesting as follows:
“I need to reschedule this hearing date by a week or two please. A family matter has occurred and currently is requiring my absence and will continue too (sic) the date currently set to hear my case. Please advise at your earliest convenience a new date”
The matter was then listed for a staff conciliation on 20 April 2022. On 13 April 2022 the Commission made an attempt to contact the Applicant to confirm his mobile number. A voice message was left to request the Applicant call back or email the requested information to the Commission.
On 20 April 2022, the staff conciliator called the number provided by the Applicant on his Form F2 several times and left voice messages. The Applicant did not answer the calls and at 2.47pm AEST the staff conciliator sent an email to the Applicant, copied to the Respondent in the following terms:
“Dear Applicant,
We are due to commence into conciliation at this time. I have been attempting to contact you. Please note the other party have been copied into our correspondence.
If I do not hear from you in the next 15 minutes I will assume we are not going ahead. The parties may need to consider attempting conciliation at another time.
…”
Later that day, the Commission sent a letter by email to the Applicant and Respondent highlighting the non-resolution of the matter at conciliation as a result of the Applicant’s absence. This letter informed the Applicant that in lieu of any correspondence from him, that the matter would be referred to a Commission Member.
On 6 May 2022, the matter was allocated to my Chambers for determination of the merits of the application. A notice of listing and directions were sent from my Chambers on 19 May 2022 setting out dates which the parties were to provide material in respect of the application, putting the parties on notice for a Mention/Directions Conference, and listing the matter for, inter alia, a Hearing before me on 20 June 2022.
On 1 June 2022, my Chambers made several attempts to contact Mr Davies for the purpose of the conference. The Applicant did not answer the calls.
Later that day, at 15:23pm, my Chambers wrote to the Applicant in the following terms:
“Chambers refers to the Notice of Listing issued to the parties on 19 May 2022.
Mr Davies has failed to attend the Conference after Chambers made attempts to contact him on his provided number, further he has failed to comply with the directions contained within the Notice of Listing.
Davies, you are directed to file an explanation and supporting evidence regarding your failure to attend the Conference today and your failure to provide the directed material by no later than 4.00pm Thursday 2 June 2022. If you do not wish to proceed with your application then you can file a Form F50 Notice of Discontinuance (a copy of this form is attached).
The parties are reminded of section 399A of the FW Act, which 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.
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.”
Please note that the Commission cannot dismiss an application pursuant to section 399A unless the employer makes an application for the Commission to do so. If the Respondent wishes to make an application pursuant to section 399A to have the Application dismissed on the grounds that Mr Davies failed to attend the conference conducted by the Commission and failed to provide submissions, they may do so using a Form F1 Application (no specific form provided) available on the Fair Work Commission website. A copy of the section 399A application and any supporting documentation should be forwarded to the Commission and copied to the Applicant by 4.00pm Friday 3 June 2022.”
The Applicant also did not adhere to the directions given by the date given in the directions for the filing of his submissions.
On 3 June 2022, Mr Jamie McPherson for the Respondent made the subsequent application and copied the Applicant.
Respondent’s submissions
The Respondent in their Form F1 highlighted that the Applicant filed to comply with the directions of the Commission in two instances and failed to attend the conference.
The Respondent sought that the matter be dismissed pursuant to s.399A of the Act and that each party bear their own costs (if any) incurred in the matter.
Consideration
The Applicant has failed to provide any explanation for his failure to attend the conference, file submissions by the date directed, nor file a notice of discontinuance.
The failure to comply with directions has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A of the Act.
The process undertaken has been accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent, as a Form F1, and a copy was served on the Applicant. The Applicant was provided with an opportunity to respond to the application and advised that a failure to do so may result in his application being dismissed.
I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed. Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
<PR742530>
[1] [2021] FWCFB 875 [57].
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