Justin Bru v Grilld Pty Ltd
[2023] FWC 170
•19 JANUARY 2023
| [2023] FWC 170 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Justin Bru
v
Grilld Pty Ltd
(U2022/10836)
| DEPUTY PRESIDENT LAKE | BRISBANE, 19 JANUARY 2023 |
Application for an unfair dismissal remedy – application for dismissal of application pursuant to s.399A – application dismissed
Mr Justin Bru (the Applicant) lodged an application with the Fair Work Commission (the Commission) 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 Grill’d Pty Ltd (the Respondent). Ms Lauren Houlihan of the Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A(1)(a) of the Act.
Procedural background
On 21 December 2022, this matter was allocated to me.
On 4 January 2023, I issued the following Directions: a conference was listed for 10:00am on 10 January 2023. A hearing was listed for 10:00am on 16 March 2023. The Applicant was to file their submissions by 4:00pm on 23 January 2023, the Respondent was to file their submissions by 4:00pm on 6 February, and the Applicant was to reply by 4:00pm on 13 February 2023.
On 10 January 2023 at 10:00am, my Chambers made several attempts to contact Mr Bru for the purpose of the conference. The Applicant did not answer the calls. The Applicant was then given an additional fifteen minutes before being called again but failed to answer.
Later that day at 11:00am, my Chambers wrote to the parties in the following terms:
“Dear parties,
Chambers refers to the Directions that were issued to the parties on 4 January 2023.
Mr Bru failed to comply with the Directions by failing to attend the conference today and not advising Chambers of the Applicant’s unavailability.
In accordance with paragraph [6] of the Directions, Mr Bru was expected to be available for the telephone conference at 10:00am (QLD Time) on Tuesday, 10 January 2023.
As a result of this non-compliance, Mr Bru is directed to provide by Wednesday, 11 January 2023 before 4:00pm (QLD Time):
·explanation and evidence as to why he failed to attend the conference.
Failure to do so will result in the Commission considering dismissal of your application.
Mr Bru, if you do not wish to proceed with the application, you should complete the attached Notice of Discontinuance and forward it to Chambers by Wednesday, 11 January 2023 before 4:00pm (QLD Time).”
(Emphasis not added)
On 12 January 2023 at 3:19pm, my Chambers wrote to the parties again in the following terms:
“Dear parties,
Chambers refers to the correspondence below.
Directions were sent to the parties on 4 January 2023 (attached).
In accordance with paragraph [6] of the Directions, the Applicant was required to attend a conference at 10:00am (QLD Time) on 10 January 2023.
The Applicant failed to comply with the Directions.
The Applicant was then given until 4:00pm (QLD Time) on 11 January 2023 to provide:
·explanation and evidence as to why the Applicant failed to attend the conference.
The Applicant again failed to comply with the non-compliance email.
Section 399A of the Fair Work Act 2009 (Cth) 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 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.”
Please note that the Commission cannot dismiss an application pursuant to section 399A unless the employer makes an application for the Commission to do so. If Grilld Pty Ltd wishes to make an application pursuant to section 399A to have the application dismissed on the grounds that Mr Bru failed to comply with a direction of the Commission, Grilld Pty Ltd may do so using a Form F1 Application (no specific form provided) attached. A copy of the section 399A application and any supporting documentation should be forwarded to the Commission and copied to Mr Bru by 4:00pm (QLD Time) on 13 January 2023.
Mr Bru, if you do not intend to proceed with the application you should complete the attached Notice of Discontinuance and forward it to Chambers by 4:00pm (QLD Time) on 13 January 2023.”
(Emphasis not added)
On 13 January 2023 at 11:32am, the Respondent filed their Form F1 requesting that the matter be dismissed pursuant to s.399A(1)(a) of the Act.
On 16 January 2023 at 3:41pm, my Chambers acknowledged receipt of the Form F1 and wrote to the parties again, noting the Applicant’s second failure to comply with the Directions.
“Dear parties,
Chambers acknowledges receipt of the Respondent’s Form F1 (attached) requesting dismissal of the application pursuant to s.399A of the Fair Work Act 2009.
Mr Bru, the Deputy President is now considering dismissal of your application. If you wish to respond to the Respondent’s Form F1, you must file with the Commission and serve on the Respondent your response by 4:00pm (QLD Time) on Tuesday, 17 January.
Failure to respond may result in your application being dismissed.”
(Emphasis not added)
Since this direction, the Applicant has not communicated with the Commission.
The Respondent’s submissions
The Respondent in their Form F1 highlighted that the Applicant failed to comply with the Directions of the Commission despite the Applicant being given extra time to comply.
The Respondent sought that the matter be dismissed pursuant to s.399A(1)(a) of the Act.
Legislation
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.”
Consideration
The Applicant failed to engage with the Commission in a timely manner.
Since being allocated this matter, I have received no communication from the Applicant.
In spite of Chambers attempting to communicate with the Applicant on 10 January, 12 January, and 16 January, the Applicant did not engage.
The failure to attend the conference and to provide reasons why he has not followed the Directions has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A(1)(a) of the Act.
The process undertaken has been in 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 time to provide a response to the application and was advised that a failure to do so may result in their application being dismissed.
I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed for failure to follow a Direction from the Commission. Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
[1] [2021] FWCFB 875, [57].
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