| [2023] FWC 2888 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Justin Lloyd
v
Tompsett Asphalt Pty Ltd
(U2023/8545)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 2 NOVEMBER 2023 |
Application under s 399A – failure to comply with directions – application granted
The following is an edited version of a decision delivered on transcript earlier today. Justin Lloyd made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). On 13 October 2023, I issued directions that Mr Lloyd file submissions and evidence by 27 October 2023. He failed to do so. On 30 October 2023, Tompsett Asphalt Pty Ltd (Tompsett) made an application to dismiss Mr Lloyd’s application under s 399A. I listed the matter for non-compliance hearing at 12.00 on 2 November 2023 and advised the parties that I would consider the s 399A application at that time. Mr Lloyd failed to attend the proceeding.
Section 399A states that the Commission may dismiss an application if it is satisfied that the applicant has unreasonably failed to attend a conference or hearing held by the Commission, or has unreasonably failed to comply with a direction of the Commission relating to the application. Mr Lloyd failed to comply with my directions of 13 October 2023 and failed to attend today’s proceeding. Mr Lloyd has provided no explanation for his failure to comply with my directions or attend the proceeding today. I conclude that those failures were unreasonable. The discretion to dismiss an application pursuant to s 399A has been enlivened. It is appropriate to exercise it. Mr Lloyd has failed to engage with the process relating to his own application. That application is dismissed.
DEPUTY PRESIDENT
Hearing details:
2023
Melbourne
2 November
Printed by authority of the Commonwealth Government Printer
<PR767909>
- AGLC
- Justin Lloyd v Tompsett Asphalt Pty Ltd [2023] FWC 2888
- Case
- [2023] FWC 2888
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to address was whether Lloyd's failure to comply with the direction and his absence from the proceeding constituted reasonable grounds for dismissing his application. Section 399A of the Act provides that the Commission may dismiss an application if it is satisfied that the applicant has unreasonably failed to comply with a direction or attend a conference or hearing. The Deputy President needed to determine whether Lloyd's conduct amounted to unreasonable non-compliance and non-attendance. Lloyd provided no explanation for his failure to comply with the direction or to attend the hearing, which the Deputy President took into account in reaching the conclusion.
The Deputy President found that Lloyd's failure to comply with the direction and his non-attendance at the hearing were unreasonable. Lloyd's lack of engagement with the process relating to his own application was noted by the Deputy President. The court held that the discretion to dismiss the application under Section 399A had been enlivened and decided to exercise it. Consequently, Lloyd's application for unfair dismissal was dismissed.
The final orders of the court were that the application by Justin Lloyd for unfair dismissal against Tompsett Asphalt Pty Ltd was dismissed. Lloyd's failure to comply with the direction and his absence from the hearing were deemed unreasonable. The application was dismissed as per the court's discretion under Section 399A of the Fair Work Act 2009.
Orders
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Evidence
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