Jaye Young v Cheryl O'Dwyer & Darren James O'Dwyer
[2024] FWC 2344
•2 SEPTEMBER 2024
| [2024] FWC 2344 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jaye Young
v
Cheryl O'Dwyer & Darren James O'Dwyer
(U2024/3504)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 2 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – applicant did not appear at hearing – applicant did not comply with directions - application dismissed
On 28 March 2024, Mr Jaye Young made an application (the application) to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from her employment with Cheryl O’Dwyer & Darren James O’Dwyer (Respondent).
On 29 April 2024, the Respondent filed a Form F3 – Employer response to unfair dismissal application. The matter was listed for a conciliation before a Commission staff conciliator on 14 May 2024, and did not resolve at this conciliation.
The matter was then listed for a Member Assisted Conciliation and Directions conference by Video using Microsoft Teams, before me, on 5 June 2024. At this conference Mr Young was represented by a Paid Agent. The Respondent was represented by Dentons Lawyers.
After hearing from the parties, my Chambers issued directions for the filing and serving of materials and listed the matter for hearing in relation the merits of the application at 10:00am on 17 July 2024 via Microsoft Teams (the Directions).
At 8:48am on 24 June 2024, the Paid Agent submitted a Form F54 advising my Chambers that they were no longer acting for Mr Young.
At 4:23pm on 3 July 2024, the Respondent’s legal representative sent an email to my Chambers advising that the parties had reached a settlement and were in the process of finalising a deed of settlement and release for execution (Deed).
At 5:53pm on 5 July 2024, the Respondent’s legal representative advised my Chambers that they had provided the Applicant with the proposed Deed.
At 9:00am on 12 July 2024, my Chambers sent an email to the parties directing Mr Young to advise whether the Hearing should be vacated pending the settlement being finalised.
At 4:01pm on 12 July 2024, the Respondent’s legal representative advised my Chambers that Mr Young had signed the Deed but that it was not executed before a witness. The Respondent informed my Chambers that a signed Deed executed before a witness would be provided by 19 July 2024.
At 2:48pm on 16 July 2024, my Chambers informed the parties that the Hearing would be vacated pending the execution of the Deed and also because Mr Young had not filed any materials as required by the Directions. The parties were directed to provide a further update by 31 July 2024.
At 2:32pm on 1 August 2024, the Respondent’s legal representative advised my Chambers that a Deed had been executed and that Mr Young was required to file a Notice of Discontinuance.
At 10:49am on 14 August 2024, the Respondent’s legal representative sent my Chambers the following letter:
Dear Associate
CHERYL O'DWYER & DARREN JAMES O'DWYER T/A ROCK SOLID TRAILERS (ABN 11 893 350 597) ATS JAYE YOUNG
FAIR WORK COMMISSION PROCEEDINGS NUMBER: U2024/3504 (PROCEEDINGS)We refer to our Mackenzie Roberts, Associate email dated 1 August 2024, previous correspondence and confirm that on 31 July 2024, we received the deed of settlement and release (Deed) (as executed by the applicant, Jaye Young (Applicant)), however, the Applicant has not complied with the terms of the Deed (which include, amongst other things, lodging a notice of discontinuance in the Proceedings within 3 business days (no later than 5 August 2024) upon his execution of the Deed).
Accordingly, our client respectfully requests that the Commission, pursuant to section 399A(1)(c) of the Fair Work Act 2009 (Cth), dismiss the Proceedings forthwith.
The matter was listed for Hearing at 12:00pm on 19 August 2024 to determine if the Application should be dismissed in accordance with s. 399A of the FW Act. The Hearing proceeded as scheduled.
My Chambers attempted to call Mr Young twice at 11:55am and 11:56am before the commencement of the hearing on the phone number provided in the application, however Mr Young did not respond to the phone calls and did not appear at the hearing listed on 19 August 2024. The Respondent pressed its application for Mr Young’s application to be dismissed according to s. 399A of the FW Act.
Following the hearing, at 12:55pm 19 August 2024 my Chambers sent the following email to the parties:
Dear parties,
I refer to the above matter and the attached Notice of Listing.
The Applicant did not attend the Hearing scheduled for 12:00pm today, 19 August 2024. The purpose of the Hearing was for the Deputy President to decide whether the application should be dismissed because the Applicant failed to discontinue the application after a settlement agreement had been concluded.
Chambers has made several attempts to contact the Applicant via the mobile number provided in Form F2.
Due to the Applicant’s absence at the Hearing, the Respondent has requested that the Commission dismiss the application under s.399A(1)(a) of the Fair Work Act 2009 (Cth). Section 399A(1)(a) permits the Commission to dismiss an unfair dismissal application if the Commission is satisfied that the Applicant has unreasonably failed to attend a conference conducted by the Commission, or a hearing held by the Commission, in relation to the application.
The Applicant is required to advise whether:
1.He wishes to discontinue the matter; or
2.He objects to the application being dismissed and if so, the reasons for the objection.
by no later than 12:00pm on Friday, 23 August 2024.
In the absence of a response, Deputy President Wright will dismiss the application pursuant to s.399A(1)(a) of the Fair Work Act 2009 (Cth), which will result in a publicly accessible decision being issued.
Mr Young did not respond to this email.
Section 399A of the FW Act provides as follows:
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.
I am satisfied that the Commission has taken reasonable and appropriate steps to inform Mr Young of the Directions and the Hearing on 19 August 2024.
In addition, I note that there is no material before me that addresses the matters in s 387.
In the circumstances, I am satisfied that Mr Young has unreasonably:
(a) failed to attend a hearing held by the Commission, in relation to the application; and
(b) failed to comply with a direction of the Commission relating to the application.I do not deal with s. 399A(1)(c) as the Respondent has informed me that settlement monies have not yet been paid to Mr Young, so I am unable to find that the settlement agreement has been concluded.
I have therefore decided to dismiss the application pursuant to s. Section 399A(1) of the FW Act. I order accordingly.
DEPUTY PRESIDENT
Appearances:
No appearance for the Applicant
J. Le Blond, Solicitor, for the Respondent
Hearing details:
2024
August 19
By Video using Microsoft Teams
Printed by authority of the Commonwealth Government Printer
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