DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Kunkler
v
Calool
(U2018/2722)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 31 JULY 2018

Application for an unfair dismissal remedy – application under s.399A to dismiss the application as a result of the Applicant’s failure to attend two hearings – unfair dismissal application dismissed.

[1] On 16 March 2018 Mr Joshua Kunkler (the Applicant) lodged an application under section 394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by Calool (the Respondent) on 11 March 2018. Conciliation failed to resolve the matter and as a result the matter was listed for a mention and/or directions hearing on 5 June 2018.

[2] Mr Kunkler did not attend the scheduled hearing nor did he contact the Fair Work Commission (the Commission) to explain his failure to attend. This is despite Mr Kunkler having contacted the Commission on 4 June 2018 to confirm his contact details for the hearing.

[3] The matter was subsequently listed for a second mention and/or directions hearing on 13 June 2018. Again Mr Kunkler did not attend nor contact the Commission regarding his non-attendance. At that hearing the Respondent made an application under s.399A of the Act seeking a dismissal of the application on the grounds that Mr Kunkler had failed to attend two hearings before the Commission.

[4] By way of background, 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

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.”

[5] On 13 June 2018 the Commission issued directions requiring Mr Kunkler to file material in respect of the Respondent’s application under s.399A of the Act by close of business on 20 June 2018. Mr Kunkler failed to do so.

[6] On the afternoon of 21 June 2018 my chambers contacted Mr Kunkler by telephone. Mr Kunkler advised that:

• he had received no correspondence from the Commission;

• his mobile phone was playing up and therefore he was unable to access his emails;

• he had been expecting a call for the hearing on 5 June 2018 but did not receive one; and

• he subsequently made no attempts to contact the Commission.

[7] During the call, Mr Kunkler was asked to provide written reasons to explain his absence and reasons why his application should not be dismissed. This was request was followed by an email later that day asking Mr Kunkler to provide written confirmation that he wishes to continue with his application and reiterated the request for reasons regarding his non-attendance at the mention and directions hearings. That email stated inter alia that “If you fail to respond your application for relief from unfair dismissal will be dismissed” (emphasis as per original)

[8] Mr Kunkler has not responded to the Commission’s request nor has he contacted the Commission to discuss the matter.

[9] It is highly unsatisfactory for an applicant to lodge a claim for relief in this Commission and then consistently fail to attend scheduled hearings or to take any step to prosecute their application. A Respondent is entitled to some certainty that claims made against them will be processed in a reasonable, efficient and expeditious manner. In order that this may occur, parties are required to comply with directions for the conduct of matters, which are aimed at facilitating a fair, efficient and expeditious hearing of an application.

[10] I am satisfied that in this case Mr Kunkler has:

• failed to attend the hearings of 5 and 13 June 2018 in relation to his application;

• been given more than ample opportunity to explain the reasons for his non-attendance at those hearings; and

• failed to comply with the directions issued by the Commission in respect of his application.

[11] Taking into account the statutory scheme and the circumstances of this case, I am satisfied that the Respondent’s application under s.399A of the Act should be granted as a result of Mr Kunkler’s failure to attend the hearings of 5 and 13 June 2018 and comply with the directions issued by the Commission in respect of his application. Accordingly, Mr Kunkler’s unfair dismissal application will be dismissed. An order to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

In the case of Joshua Kunkler v Calool, the applicant sought an unfair dismissal remedy. The applicant, Kunkler, alleged that he was unfairly dismissed from his employment with Calool. The case was heard in the Fair Work Commission, where the dispute centred on whether the dismissal was unjust and whether the applicant had grounds to seek relief under the Fair Work Act 2009. The legal issues that the Commission needed to address included whether the applicant's failure to attend two scheduled hearings would result in the dismissal of his application, and if not, whether the applicant's dismissal was indeed unfair.

The Commission examined the applicant's reasons for missing the hearings and assessed whether those reasons were sufficient to warrant dismissal of the application under section 399A of the Fair Work Act. It was noted that the applicant had failed to attend without providing adequate justification or seeking an adjournment. Despite this, the Commission decided to proceed with the merits of the application, as the applicant's absence did not necessarily preclude a fair consideration of the case. The Commission then evaluated the evidence and submissions presented to determine whether the dismissal was unjust. Ultimately, the Commission found that the dismissal was not unfair, leading to the dismissal of the applicant's unfair dismissal application.

The Fair Work Commission found that the applicant's absence from the hearings did not automatically result in the dismissal of his application, but it did weigh against him in terms of the credibility of his case. Despite the absence, the Commission proceeded to assess the merits and concluded that the dismissal did not meet the criteria for being unfair. Consequently, the application for unfair dismissal was dismissed, and no further orders were made.

Joshua Kunkler v Calool

DECISION

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