Luke Gray v Sans Pants Pty Ltd T/A El Grotto

[2018] FWC 1902

[2018] FWC 1902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Gray
v
Sans Pants Pty Ltd T/A El Grotto
(U2017/13564)

DEPUTY PRESIDENT BINET PERTH, 29 MARCH 2018

Application for an unfair dismissal remedy - application by respondent pursuant to s.399A - application dismissed.

[1] On 20 December 2017, Mr Luke Gray (Mr Gray) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Sans Pants Pty Ltd T/A El Grotto (El Grotto)

[2] On 23 January 2018, El Grotto lodged a Form F3 Employer Response, noting it had a jurisdictional objection to the application that Mr Gray was not an employee.

[3] The matter was listed for a telephone conciliation before an FWC conciliator on 9 February 2018. El Grotto were available to participate in the conciliation, but Mr Gray could not be contacted, nor did Mr Gray make contact with the FWC subsequently.

[4] The matter was subsequently allocated to my Chambers. On 2 Febuary 2018 a Notice of Listing was sent to Mr Gray informing him that the matter had been listed for a conference on 8 March 2018 (Conference).

[4] On 8 March 2018 El Grotto attended at the FWC to participate in the Conference. Mr Gray did not attend the Conference nor did he make any contact with Chambers to advise that he would not be in attendance. Efforts were made to reach Mr Gray by telephone on several occasions shortly after the listed commencement time of the Conference but he could not be reached.

[7] On 13 March 2018, El Grotto filed with the FWC and served on Mr Gray an application for the matter to be dismissed pursuant to section 399A of the FW Act on the grounds that Mr Gray unreasonably failed to attend conferences conducted by the FWC (Dismissal Application).

[8] Section 399A of the FW 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.”

[9] Mr Gray was invited by Chambers to make written submissions in relation to the Dismissal Application by 22 March 2018. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the matter.

[10] No further correspondence has been received from Mr Gray as at the date of this decision, and no request was received from El Grotto to be heard orally.

[11] I am satisfied that Mr Gray has unreasonably failed to attend conferences conducted by the FWC relating to his Application.

[12] On the application of El Grotto and in the exercise of my discretion under section 399A of the FW Act, the Application is dismissed. An order to this effect (PR601665) will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR601664>