Lindsay May v Beyond Bricklaying Pty Ltd

[2018] FWC 4871

[2018] FWC 4871

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lindsay May
v
Beyond Bricklaying Pty Ltd
(U2018/6114)

DEPUTY PRESIDENT BINET PERTH, 17 AUGUST 2018

Application for an unfair dismissal remedy – failure to comply with directions – application dismissed.

[1] On 13 June 2018, Mr Lindsay May (Mr May) 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 Beyond Bricklaying Pty Ltd (Beyond Bricklaying).

[2] On 26 July 2018 a Notice of Listing was issued informing the parties that the Application was listed for a conciliation conference before Deputy President Binet at 1pm on 9 August 2018 (Conference).

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

[4] Both parties applied for, and were granted leave to be represented at the Conference. Mr May’s representative Mr Mathew Lynch (Mr Lynch) was granted leave to participate in the Conference by video link from the FWC premises in Sydney.

[5] Neither Mr May or Mr Lynch were present at the listed time for the Conference commencement. My Associate endeavoured to contact Mr May shortly after the listed start time of the Conference but Mr May could not be reached.

[6] Mr Lynch joined the Conference shortly thereafter. When questioned as to Mr May’s whereabouts Mr Lynch indicated that Mr May would not be attending the Conference. Mr Lynch failed to furnish a reason as to why Mr May was not able to attend the conference, nor why my Chambers had not been informed of this prior to the commencement of the Conference.

[7] Due to Mr May’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, Beyond Bricklaying was invited to make an application under section 399A of the FW Act to have Mr May’s application dismissed (Dismissal Application). Beyond Bricklaying was directed to file their Dismissal Application by close of business 13 August 2018.

[8] Mr May 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 May was directed to file his material by close of business 13 August 2018.

[9] 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.”

[10] On 13 August 2018, Beyond Bricklaying filed a Dismissal Application. The Dismissal Application made reference to the Fair Work Amendment Bill 2012 (Cth) Explanatory Memorandum.

[11] The Explanatory Memorandum 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

[12] The Dismissal Application notes that despite being legally represented, neither the FWC nor the Respondent were given any prior advice by Mr May or Mr Lynch that Mr May could not, or did not intend to attend the Conference.

[13] In the alternative, the Dismissal Application submitted that the FWC dismiss the Application on the basis that it is frivolous or vexatious, or has no reasonable prospects of success.

[14] Notwithstanding that Mr May was invited to make submissions providing reasons why the FWC should not dismiss the Application by close of business 13 August 2018, no correspondence of any kind was received from Mr May by close of business on 13 August 2018. No further correspondence has been received from either Mr May or his representative at the time of writing this decision.

[15] The direction to attend the Conference was clear and concise. No prior notification that Mr May could not or would not attend was provided by Mr May or his representative. In the circumstances of this matter, I am satisfied Mr May has unreasonably failed to comply with a direction issued by the FWC.

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

[17] An Order PR610253 giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR610250>

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