Kaden Rowlands v D.J Crowden & M.J Crowden & S.M Crowden & Z.J Crowden

[2024] FWC 1567

[2024] FWC 1567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Kaden Rowlands
v

D.J Crowden & M.J Crowden & S.M Crowden & Z.J Crowden

(U2024/2028)

COMMISSIONER LEE MELBOURNE, 17 JUNE 2024

Application for an unfair dismissal remedy – application dismissed.

1. On 26 February 2024, Mr Kaden Rowlands (the Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was dismissed from his employment with D.J Crowden & M.J Crowden & S.M Crowden & Z.J Crowden (the Respondent) on 12 February 2024.

1. On 2 May 2024, my Chambers sent an email to parties providing the Notice of Listing and Directions. In the email parties were notified that a Mention Hearing was listed for 10:00am on Monday, 13 May 2024.

1. On Monday, 13 May 2024 a Mention Hearing was held via Microsoft Teams with both of the parties. A private conference was convened upon agreement by the parties to try and settle the matter by agreement. The settlement discussions were unsuccessful. The parties were directed to comply with the Directions which had previously been issued. The Directions provided that the Applicant was to file materials in support of their case by no later than close of business on Monday, 10 June 2024.

1. The Applicant did not file any materials by close of business on Monday, 10 June 2024. The matter was therefore listed for a Non-compliance Hearing on Thursday, 13 June 2024. Parties were sent this Notice of Listing and link to join the Microsoft Teams Meeting on Wednesday, 12 June 2024.

1. The Respondent attended the Non-compliance Hearing at 4:00pm on Thursday, 13 June 2024. The Applicant did not attend the Hearing and my Chambers made attempts to call the Applicant without success. At the Hearing the Respondent made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to file materials consistent with the Directions and failed to attend the Mention/Conference conducted by the Commission. I waived any required compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

1. Later that day, My Chambers sent the Applicant an email informing him of the s.399A application. The Applicant was directed to file with the Commission, and serve on the Respondent, submissions providing reasons as to why the Commission should not dismiss his application, including evidence or other documentary material to support any reasons given. The material was required by no later than 4:00pm on Monday, 17 June 2024. The letter indicated that if the Applicant did not provide a reason by 4:00pm on Monday, 17 June 2024. I proposed to dismiss the application without further notice.

1. To date, the Applicant has not filed any material, or otherwise contacted the Commission. 

1. Section 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

(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. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss pursuant to s.399A of the Act, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant failed to comply with directions of the Commission and also failed to attend the Non-compliance Hearing. For these reasons, I have determined to exercise my discretion under s.399A(1)(a) of the Act and dismiss the Applicant’s application.

1. The Applicant’s application for remedy from unfair dismissal is dismissed. An order[1] will be issued concurrently with this decision.

COMMISSIONER

[1] PR776086.

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