Jeremy Sean McIvor v Old Palm Liquor
[2022] FWC 3285
•23 DECEMBER 2022
| [2022] FWC 3285 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jeremy Sean McIvor
v
Old Palm Liquor
(U2022/10735)
| COMMISSIONER CIRKOVIC | MELBOURNE, 23 DECEMBER 2022 |
Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A of the Fair Work Act 2009.
On 8 November 2022, Mr Jeremy Sean McLvor (the Applicant) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with Old Palm Liquor (the Respondent). In his Form F2, the Applicant provided a mobile number (the nominated mobile number) and an email address (the nominated email address), both of which have been used by the Commission throughout the conduct of this matter. I also note that the Form F2 was sent to the Commission via a second email address (the lodgement email address).
On 6 December 2022, the file was allocated to my Chambers. On 8 December 2022, I listed this matter for a Case Management Conference (CMC) at 11:00AM AEDT on 16 December 2022, using Microsoft Teams. A Notice of Listing confirming the date and time of the CMC was sent to the Applicant by his nominated email address.
On 15 December 2022, my Chambers attempted to contact the Applicant on his nominated email at 9:56AM to request that the Applicant confirm his attendance at the CMC. The Applicant has not responded to this email.
At approximately 12:00PM on the same day, my Chambers attempted to contact the Applicant on his nominated mobile number to confirm his attendance. The call went unanswered, and a voice mail was left advising that the matter was listed for CMC at 11:00AM on 16 December 2022, and that the Applicant was required to attend.
On 16 December 2022, the Applicant did not join the CMC via the Microsoft Teams link provided to the parties. My Chambers made two attempts to contact the Applicant on his nominated mobile number at 11:00AM to conduct the CMC. Both attempts went unanswered, and voice mails were left advising that a failure to attend the CMC may result in the Applicant’s matter being dismissed. The CMC then proceeded without the Applicant.
At the CMC, the Respondent advised that it would file a s.399A application to dismiss the matter. Later that day, the Respondent lodged a Form F1 application and served a copy on the Applicant. The grounds and relief sought were as follows:[1]
“1. Dismissal of case no.
Jeremy Sean McIvor
v
Old Palm Liquor
(U2022/10735)
2. Reason for dismissal is Jeremy Sean McIvor failed to attend two prior meetings (mediation and pre-hearing). Jeremy has also made no attempt to reconcile this or reschedule.”
At approximately 11:15AM on 19 December 2022, the Applicant was sent an email from Chambers giving him an opportunity to respond to the Respondent’s s.399A application. The email was sent to both the Applicant’s nominated email address and the lodgement email address. It attached the Respondent’s Form F1 and stated:
A Case Management Conference was listed before me in this matter at 11:00AM on 16 December 2022;
The Applicant had failed to attend the CMC, despite several attempts to contact him prior to the CMC via both email and on the mobile number provided to the Commission in his application;
That the Commission was unable to reach him on his mobile number on the day of the CMC, and had not received an explanation for his non-attendance;
That the Respondent had made an application pursuant to s.399A of the Act to dismiss his application;
That by reason of his non-attendance, it appeared that he had failed to comply with a direction or order of the FWC (s.399A(1)(b) of the Act), and failed to attend a conference or hearing held by the FWC (s.399A(1)(a) of the Act).
He was directed to file with the Commission and serve on the Respondent submissions, evidence, or other documentary material in support, as to why the Commission should not dismiss his application, by no later than 4:00PM, Wednesday 22 December 2022; and
If he did not provide reasons by 4:00PM, Wednesday 22 December 2022, that it was very likely his case would be dismissed without further notice.
At approximately 12:00PM on 20 December 2022, my Chambers attempted to contact the Applicant on his nominated mobile number. The call was not answered, and my Chambers advised the Applicant via voice mail that:
The Applicant had failed to attend the CMC on 16 December;
The Respondent had filed a s.399A application against the Applicant;
Pursuant to the email sent on 19 December 2022, the Applicant had until close of business 21 December 2022 to provide a response; and
If the Applicant failed to provide a response, it was likely his case would be dismissed without further notice.
On 20 December 2022, my Chambers sent a further email to the Applicant, correcting a typographical error in the 19 December 2022 email which related to the deadline for the Applicant’s submissions. The email was sent to both the nominated email address and the lodgement email address, and relevantly stated:
“For clarity, I advise that if you don’t provide your reasons for your non-attendance by 4pm, Wednesday 21 December 2022 it is very likely that your case will be dismissed without further notice.”
(Original emphasis)
To date, no response has been received from the Applicant.
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.”
In Lockyear v Graeme Cox [2021] FWCFB 875 at [57] the Full Bench found:
“[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.”
I have applied the reasoning of the Full Bench in coming to my decision.
Section 399A(2) is satisfied by the Respondent’s application of 16 December 2022. Similarly, s.399A(1)(a) is satisfied by the Applicant’s failure to attend the CMC on 16 December 2022. The jurisdictional pre-requisites are met for the Applicant’s application to be dismissed 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 law before they have had their “day in court.”[2]
The Applicant was served with a copy of the s.399A application on 19 December 2022 and given until 4:00PM 21 December 2022 to respond. A further attempt to contact the Applicant via mobile phone was made on 20 December 2022. In both attempts, the Applicant was advised that a failure to respond would likely result in his application being dismissed without further notice.
I am satisfied that the Applicant has acted unreasonably in failing to attend the CMC on 16 December 2022. He was advised of the CMC in advance via the contact details he has provided and has made no response to the repeated Commission attempts to contact him. I also consider the Applicant has unreasonably failed to comply with my direction to respond to the s.399A application. Finally, I note that the Applicant also did not attend a conciliation before a staff conciliator listed on 30 November 2022, prior to the matter being allocated to me.
The Respondent is entitled to ask for finality. The Applicant has not taken up the opportunity to prosecute his case. In the circumstances, I see no utility in allowing the Applicant’s claim to continue, and I therefore grant the Respondent’s application under s.399A.
The Applicant’s application is therefore dismissed.
COMMISSIONER
[1] Respondent’s Form F1, Question 2.1
[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].
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