Justin Cavanna v Linfox Australia Pty Ltd T/A Linfox

[2018] FWC 6356

[2018] FWC 6356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Justin Cavanna

v

Linfox Australia Pty Ltd T/A Linfox

(U2018/7876)

DEPUTY PRESIDENT BINET PERTH, 12 OCTOBER 2018

Application for an unfair dismissal remedy – failure to attend a conference – application dismissed.

1. On 31 July 2018, Mr Justin Cavanna (Mr Cavanna) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging he was unfairly dismissed by Linfox Australia Pty Ltd (Linfox).

1. On 12 September 2018 a Notice of Listing was issued informing the parties that the Application was listed for a conciliation conference before Deputy President Binet at 3pm on 25 September 2018 (Conference).

1. The Notice of Listing issued to the parties stated that parties were required to attend the conference in person.

1. Mr Cavanna was not present at the listed time for the Conference commencement.  My Associate endeavoured to contact Mr Cavanna shortly after the listed start time of the Conference but Mr Cavanna could not be reached.

1. Due to Mr Cavanna’s failure to comply with a direction of the FWC, being the direction on the Notice of Listing that he was required to attend the Conference in person, Linfox was invited to make an application under section 399A of the FW Act to have Mr Cavanna’s application dismissed (Dismissal Application). Linfox was directed to file their Dismissal Application by close of business 2 October 2018.

1. Mr Cavanna was invited to make submissions providing reasons why the FWC should not dismiss his application and advised that those submissions should be accompanied by evidence or other documentary material supporting those reasons. Mr Cavanna was likewise directed to file his material by close of business 2 October 2018.

1. 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 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.”

1. No further correspondence was received from either party until 4 October 2018, when Linfox filed a Dismissal Application. The Dismissal Application noted that Linfox attended to participate in the Conference at the listed time, that Mr Cavanna did not attend nor make any contact with Chambers to advise he would not be in attendance, and he could not be reached at the relevant time. Linfox submit that on the basis of Mr Cavanna’s failure to attend the conference, that the Application be dismissed in accordance with s.399A of the FW Act.

1. The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) states the FWC may exercise its discretion to dismiss an application under this provision in situations which include the following:

“Where an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend”[1]

1. Notwithstanding that Mr Cavanna was invited to make submissions providing reasons why the FWC should not dismiss the Application by close of business 2 October 2018, no correspondence of any kind was received from Mr Cavanna by close of business on 2 October 2018.  No further correspondence has been received from Mr Cavanna at the time of writing this decision.

1. The direction to attend the Conference was clear and concise.  Mr Cavanna did not provide prior notification that he could not or would not attend the Conference.  In the circumstances of this matter, I am satisfied Mr Cavanna has unreasonably failed to comply with a direction issued by the FWC to attend a conference conducted by the FWC.

1. Consequently, the Application is dismissed pursuant to section 399A(1)(a) and (b) of the FW Act.

1. An Order PR701298 giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

<PR701297>

[1] Fair Work Amendment Bill 2012 (Cth), Explanatory Memorandum, page 36.

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