Kable Shiels v M L Mentiplay Pty Ltd

[2021] FWC 1990

[2021] FWC 1990

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kable Shiels
v
M L Mentiplay Pty Ltd
(U2021/1515)

DEPUTY PRESIDENT MANSINI MELBOURNE, 22 APRIL 2021

Application for an unfair dismissal remedy.

[1] Mr Shiels (Applicant) has applied for an unfair dismissal remedy in relation to the dismissal of his employment with M L Mentiplay Pty Ltd (Respondent) pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined to dismiss the application due to the Applicant’s unreasonable failures to attend a hearing held by the Commission and comply with directions of the Commission in relation to the application. The reasons for this decision follow.

Context

[3] The application was filed on 23 February 2021 and further information was provided on 24 February 2021.

[4] On 12 March 2021, a conciliation conference was listed before a Commission staff conciliator.

[5] The Applicant did not attend the conciliation and was not able to be reached by the Conciliator at the commencement time. As the Applicant did not attend, the conciliation was unable to proceed. The Applicant did not file any material with the Commission or respond to the Commission’s attempts to contact him.

[6] The file was then allocated to me. I listed the matter for a directions hearing, by telephone, on 29 March 2021. The Applicant was notified that any failure to attend may result in the matter being dismissed or determined without hearing further from them.

[7] The Applicant did not attend the directions hearing and was not able to be reached by my associate at the commencement time. The directions hearing proceeded in the absence of the Applicant.

[8] At the directions hearing, the Respondent was directed to file a response to the claim. The Respondent notified of its intention to apply for the Commission to dismiss the matter pursuant to s.399A.

[9] At 12:35pm (AEDT) on 31 March 2021, the Respondent emailed the Commission and attached an application form but only the first page could be opened. The Respondent was requested to file a complete application in order for it to be received.

[10] Subsequently at 2:13pm (AEDT) on 31 March 2021, my chambers issued correspondence to the Applicant and the Respondent at their respectively nominated email addresses. That correspondence is extracted in full at Annexure A to this decision.

[11] At 2:42pm (AEDT) on 31 March 2021, the Respondent emailed the Commission and attached a s.399A application to dismiss the Applicant’s unfair dismissal claim.

[12] On 7 April 2021, the Applicant was directed to respond to the Respondent’s s.399A application by 4pm 14 April 2021. A copy of that application was attached to the directions, which also contained the following:

“Important note: any failure to respond to these directions or file materials in accordance with these directions may result in the Commission proceeding to dismiss the unfair dismissal claim pursuant to s.399A. If you need more time to respond, you should direct this request with your reasons to [email protected].”

[13] On 8 April 2021, all correspondence including the s.399A application and directions of 7 April 2021 was posted to the Applicant’s nominated postal address, via Australia Post’s express service. The Australia Post tracking information confirmed it was delivered.

[14] As at the date of this decision, the Applicant has not filed any material with the Commission or responded to the Commission’s attempts to contact him or correspond with the Commission at all since his completed application was lodged.

Statutory Context

[15] An unfair dismissal application made under s.394 may be dismissed if the Commission is satisfied that the applicant has unreasonably failed to attend a hearing or failed to comply with a direction or order of the Commission relating to the application (s.399A(1)(a) and (b)).

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary and may only be exercised on application by the employer (s.399A(2)).

[17] The Commission is not required to hold a hearing except as provided by the Act (s.593). In the context of an unfair dismissal application, the Commission must not hold a hearing unless it considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter (s.399).

Consideration and conclusion

[18] The Respondent, being the employer party to the application, has applied for the Commission to exercise its discretion to dismiss the application pursuant to s.399A.

[19] Taking into account the views provided by the Respondent, the Applicant’s election not to provide any views on the matter and the Applicant’s failure to attend (or seek any adjournment of) the conciliation conference and the directions hearing, I consider it appropriate to determine the Respondent’s application on the papers.

[20] The Applicant has not attended proceedings in this matter. He has not complied with directions of the Commission in relation to his application. He has not responded to numerous attempts made by the Commission to contact him regarding his application. Further, the Applicant has provided no explanation to the Commission for his failures to attend or comply and has not sought any dispensation, amendments or adjournments. He has simply not communicated with the Commission or made any effort to prosecute his claim since lodgement of his completed application.

[21] In these circumstances, I am satisfied that the Applicant has unreasonably failed to attend a hearing held by the Commission and unreasonably failed to comply with directions of the Commission relating to his application. Accordingly, the application is dismissed pursuant to s.399A.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR728558>

Annexure A:

“Dear All,

Applicant’s non-compliance

The Applicant did not attend the initial conciliation listed to take place in this matter.

The matter was then listed for directions hearing, by telephone, on 29 March 2021. The Applicant was notified that any failure to attend many result in the matter being dismissed or determined without hearing further from them. The Applicant did not attend the directions hearing and was not able to be reached at the commencement time.

At the time of writing, no correspondence has been received from the Applicant to explain the reason for the non-compliance or otherwise.

The matter may be dismissed

At the directions hearing, the Respondent foreshadowed that it may seek to have the matter dismissed pursuant to s.399A of the Fair Work Act. The Deputy President confirmed that any such application is required to be made, using the appropriate form (an F1 application form, attached) and the Applicant would be given an opportunity to respond.

For your reference, s.399A of the Fair Work 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

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.”

What do you need to do now?

The Commission directs that:

1. By no later than 4pm on Wednesday 7 April 2021, the Respondent is required to file its Response to the claim (using an F3 form, attached) or any application it wishes to make pursuant s.399A.

2. By no later than 4pm on Friday 10 April 2021, the Applicant is directed to advise the Commission:

a) Whether the Applicant wishes to proceed with this matter;

b) If so, the reason(s) for their non-compliance with evidence (if any) in support of those reason(s); and

c) Provide a response to any s.399A application that may be made by the Respondent in accordance with the Commission’s directions.

What if the Applicant does not wish to proceed?

If the Applicant does not wish to proceed with the claim, then they can reply to confirm this. The file will then be closed and no further action required of them.

Important note

If you do not comply with the Commission’s directions, the matter may be dismissed pursuant to s.399A of the Fair Work Act or otherwise determined on the materials before the Commission.

More information regarding the dismissing of an Unfair Dismissal matter can be found on the Fair Work Commission website: may contact me on the below number if you have any questions.”