Jarrett Deakin v Couriers Please Pty Ltd
[2024] FWC 901
•9 APRIL 2024
| [2024] FWC 901 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jarrett Deakin
v
Couriers Please Pty Ltd
(U2024/609)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 9 APRIL 2024 |
Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of Fair Work Act 2009.
On 18 January 2024, Mr Jarrett Deakin (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Couriers Please Pty Ltd (the Respondent) was unfair.
The matter was listed for conciliation before a staff member of the Commission on 21 February 2024 but did not proceed as despite attempts to contact him, the Applicant failed to attend the telephone conciliation conference.
The matter was allocated to my Chambers on 29 February 2024 following which, directions were issued to the parties that same day setting down a timetable for the filing of material by both parties.
The matter was also listed for conference/mention on 5 March 2024. On the afternoon of the conference/mention my Associate attempted to contact the Applicant by telephone. A voice message was left by my Associate advising the Applicant of the conference/mention and advising the Applicant to join the Teams meeting. The Applicant did not join the Teams meeting or return the call made by my Associate.
At the conference/mention held on 5 March 2024 the Respondent withdrew its jurisdictional objection and as such revised directions were issued that same day. The directions sent to the parties relevantly included the following;
“……………
SUBMISSIONS AND WITNESS STATEMENTS
[3] The submissions must include all relevant facts, dates and incidents to support all claims made.
[4] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.
[5] Please note that witness statements are designed to take the place of evidence-in-chief.
……………………….
NON-COMPLIANCE WITH THESE DIRECTIONS
[8] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.
[9] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.
……………….”
The Applicant then failed to file his material in relation to the merits of his application on or by close of business 2 April 2024 as required by the directions. Correspondence was then sent by my Chambers to the Applicant on the morning of 3 April 2024 noting that as he had failed to file his material as required by the directions, he was directed to attend a non-compliance hearing on 4 April 2024.
The Applicant did not join the non-compliance hearing by Teams on 4 April 2024. My Associate again attempted to contact the Applicant on the afternoon of the non-compliance hearing on the phone number listed on the Form F2. A voice message was left by my Associate advising the Applicant of the non-compliance hearing and advising him to join the Teams meeting as a failure to attend could result in his application being dismissed. The Applicant did not join the Teams meeting or return the call made by my Associate.
The non-compliance hearing proceeded and was attended by the Respondent’s Representative Ms Crouch, Associate at Citation Legal. Ms Crouch made an oral application at the non-compliance hearing that the Applicant’s unfair dismissal application be dismissed pursuant to s.399A(1) of the Act.
Correspondence was sent to the Applicant by my Chambers on 4 April 2024 following the non-compliance hearing, advising him that the Respondent had made an application pursuant to s 399A(2) of the Act that his application for an unfair dismissal remedy be dismissed pursuant to s 399A(1) of the Act. The Applicant was invited to provide submissions by close of business on Monday, 8 April 2024 as to why his application should not be dismissed. The Applicant was also advised that should he seek to be heard in relation to the s 399A application he should advise my Chambers. Otherwise, the matter would be dealt with on the papers. No submissions were filed by the Applicant in response to the correspondence sent to him on 4 April 2024.
Consideration
Turning now to whether the application should be dismissed, s 399A of the 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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss his application for an unfair dismissal remedy by the close of business on Monday, 8 April 2024, I will determine the application on the papers.
The Applicant has demonstrated a pattern of non-compliance with directions of the Commission. He has done so by failing to attend a number of conferences/hearings listed by the Commission to which he was required to attend, those being the conciliation conference on 21 February 2024, the mention/conference listed for 5 March 2024 and the non-compliance hearing listed for 4 April 2024. Furthermore, he failed to file his materials by 2 April 2024 as required by the above-referred directions. No extension of time has been sought by the Applicant in relation to his non-compliance with the directions. Nor has he provided an explanation for his non-compliance despite being afforded an opportunity to do so.
In the circumstances I have decided to grant the Respondent’s application under s.399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.
DEPUTY PRESIDENT
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