Jaxon Faulkner v KJ & JA Collins Pty Ltd

[2024] FWC 1180

[2024] FWC 1180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Jaxon Faulkner
v

KJ & JA Collins Pty Ltd

(U2024/2294)

DEPUTY PRESIDENT MASSON MELBOURNE, 7 MAY 2024

Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of Fair Work Act 2009.

1. On 29 February 2024, Mr Jaxon Faulkner (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 KJ & JA Collins Pty Ltd (the Respondent) was unfair.

1. The matter was listed for conciliation before a staff member of the Commission on 2 April 2024 but did not proceed as despite attempts to contact him, the Applicant failed to attend the telephone conciliation conference.

1. The matter was allocated to my Chambers on 8 April 2024 following which, directions were issued to the parties on 11 April 2024 setting down a timetable for the filing of material by both parties.

1. The matter was also listed for conference/mention on 17 April 2024. On the afternoon of the conference/mention my Associate contacted the Applicant by telephone. The Applicant answered and advised that he was not aware that his Application was still progressing and that he wanted to speak to his father briefly and would return my Associate’s call. My Associate explained to the Applicant that a mention is a short procedural hearing where I would explain the process that would unfold regarding his application and that the Applicant did not need to prepare anything beforehand. The Applicant returned my Associate’s call shortly after and advised he did not have time to attend the Mention due to his father’s condition. The Applicant indicated that he did not want to continue with the Mention, however confirmed that at this stage he did not want to withdraw his application and would discuss his application further with his father. My Associate advised the Applicant that the Mention would take approximately 20 minutes and that my explanation of the process might assist the Applicant in making a decision regarding his application. The Applicant advised again that he did not have time and did not join the Mention.

1. 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.

……………….” 

1. The Applicant then failed to file his material in relation to the merits of his application on or by close of business 1 May 2024 as required by the directions. Correspondence was then sent by my Chambers to the Applicant on the morning of 2 May 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 Friday, 3 May 2024. The Applicant was advised that the non-compliance hearing could result in the dismissal of his application.

1. The Applicant did not join the non-compliance hearing by Teams on 3 May 2024. My Associate called the Applicant and the Applicant answered the call and advised that he would join the Teams meeting. My Associate advised the Applicant that if that failed, she would dial his phone number directly into the meeting. The Applicant did not join the Teams meeting or answer my Associate’s calls when dialled into the meeting by telephone.

1. The non-compliance hearing proceeded and was attended by Ms G Leisputty who is the Respondent’s Office Manager. Ms Leisputty 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.

1. Correspondence was sent to the Applicant by my Chambers on 3 May 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 midday Tuesday, 7 May 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 3 May 2024.

Consideration 

1. 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.” 

1. 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 midday on Tuesday, 7 May 2024, I will determine the application on the papers.

1. 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 2 April 2024, the mention/conference listed for 17 April 2024 and the non-compliance hearing listed for 3 May 2024. Furthermore, he failed to file his materials by 1 May 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.

1. 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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