Joshua Kajewski v Carroll's Springs Pty Ltd

[2021] FWC 6627

[2021] FWC 6627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 – Unfair dismissal

Joshua Kajewski
v
Carroll's Springs Pty Ltd
(U2021/8907)

DEPUTY PRESIDENT LAKE BRISBANE, 17 DECEMBER 2021

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

[1] On 6 October 2021, Joshua Kajewski (theApplicant) lodged an application with the Fair Work Commission (theCommission) 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 Carroll's Springs Pty Ltd(theRespondent). The Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.

Legislation

[2] 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

[3] This matter was listed for a staff conciliation on 17 November 2021 by telephone to see if the matter could be resolved between the parties. Those attempts were unsuccessful.

[4] The matter was allocated to my Chambers on 7 December 2021 for determination of the merits of the application. A notice of listing and directions were sent from my Chambers on 7 December 2021 setting out dates by which the parties were to provide material in respect of the application and listing the matter for, inter alia, a Mention/Directions and Conference before me on 14 December 2021 at 2:30pm.

[5] At 12:13pm on 14 December 2021, my Chambers received a Form F54 Notice that Lawyer has Ceased to Act from the Applicant’s representative. That correspondence also provided the number on which the Applicant could be contacted directly. That number was the same as that which was provided in the Applicant’s original application.

[6] At 1:23pm that day, my Chambers confirmed receipt of that document and noted that the Applicant would be contacted directly for the conference later that afternoon.

[7] Between 2:20pm and 2:45pm, my Chambers attempted to call the Applicant on the prescribed number four times. Multiple messages were also left asking the Applicant to return the call as a matter of urgency. No contact was made. Meanwhile, the Respondent was contacted and ready to attend.

[8] At 3.02pm that afternoon, my Chambers wrote to the Applicant –copying the Respondent – in the following terms:

“Dear Mr Kajewski

I refer to the above matter which was scheduled for a Mention/Directions Hearing at 2.30pm this afternoon.

Four attempts were made to contact you on the mobile number provided on your application, but you could not be contacted. The Respondent was contacted and ready to attend.

I note that the attached notice of listing was sent on 8 December 2021 to you at [email protected] and separately to your legal representatives, though I understand that they no longer act for you.

The Deputy President directs you to provide reasons for failing to attend this afternoon’s Mention/Directions Hearing by 4pm on 16 December 2021.

If nothing is received from you by that time, the Deputy President may dismiss your application pursuant to s. 587 of the Fair Work Act 2009 (Cth)on the basis that it has no reasonable prospects of success because you have failed to prosecute your application.

It is also noted that following your failure to attend this afternoon, it is open to the Respondent to make an application under s. 399A of the Fair Work Act 2009 to have your unfair dismissal application dismissed on the basis that you unreasonably failed to attend a conference or hearing. Such an application can be made using a Form F1 application which is accessible on the Commission’s website.”

[9] No response was received.

[10] In the afternoon on 16 December 2021, the Respondent filed a Form F1 seeking that the Applicant’s application be dismissed. Shortly thereafter, my Chambers emailed both parties stating that:

“Dear Ms Vincent

I confirm receipt of that Application.  

Mr Kajewski, you have until midday tomorrow, 16 December 2021 to respond to the Respondent’s application which seeks that your application be dismissed.”

[11] No response having been received by 12:58pm the following day, my Associate again tried to call the Applicant. He did not answer and a message was left asking that he return the call as a matter of urgency. No response was received.

Respondent’s submissions

[12] The Respondent submits that the Applicant has not taken reasonable steps to comply with the Commission’s directions and his conduct displays an unwillingness to do so. Further, the Respondent submits, that by failing to attend the conference without any justification the Applicant is not pursing his own application in a diligent fashion. His non-attendance caused the Applicant to incur unnecessary legal costs.

[13] In any event, the Respondent submits that the Applicant was lawfully terminated and has been afforded procedural fairness in respect of his non-attendance.

Consideration

[14] The Applicant has failed to attend a conference in respect of his application matter. He has been provided with ample opportunity to provide an explanation for his absence but has not done so. The non-attendance and subsequent lack of response to Chambers attempts at communication by the Applicant has prompted the Respondent to make an application for the matter to be dismissed pursuant to s.399A of the Act.

[15] 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.

[16] 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

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 1   [2021] FWCFB 875 [57].