Luke Ward v P. Manettas & Co. Technical Pty Ltd T/A Bidfood Truganina

[2020] FWC 2948

[2020] FWC 2948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Ward
v
P. Manettas & Co. Technical Pty Ltd T/A Bidfood Truganina
(U2020/784)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 4 JUNE 2020

Application for an unfair dismissal remedy - application dismissed pursuant to s.399A of the Act.

[1] On 23 January 2020 Mr Luke Ward (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Walker submits that his employment had been terminated by P. Manettas & Co. Technical Pty Ltd T/A Bidfood Truganina (Bidfood Truganina, Respondent) on 3 January 2020.

[2] The matter was conciliated on 2 March 2020 however was unable to be resolved. The matter was subsequently listed for hearing before me on 15 – 17 June 2020 and the parties filed materials in accordance with the directions of the Commission. The matter was listed for telephone mention/directions hearing before me on 2 June 2019. On 1 June 2020 my Chambers contacted the Applicant to confirm his telephone details for the hearing. The Applicant advised that he had not seen the notification containing the hearing date and time which had been emailed. My Associate confirmed the hearing date and time and the Applicant subsequently provided his preferred contact details. Mr Ward did not seek an adjournment of the hearing nor did he advise that he would not be in attendance.

[3] Mr Ward did not attend the hearing on 2 June 2020. Several attempts were made by my Chambers to contact Mr Ward on his mobile phone, however he did not answer any of the calls. A voice message was left each time advising that the hearing was due to commence, and it was requested that Mr Ward answer his phone or call Chambers. Mr Ward failed to respond to those requests.

[4] Bidfood Truganina made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Ward’s failure to attend a hearing held by the Commission in relation to his application. I waived compliance with the Fair Work Commission Rules 2013 and accepted Bidfood Truganina’s oral application.

[5] Following the hearing, correspondence was sent to Mr Ward’s nominated email account advising him of Bidfood Truganina’s.399A application. Mr Ward was directed to file submissions and other documentary material in respect of the s.399A application by midday on Wednesday 3 June 2020. This correspondence stated that if the Commission did not receive a response, it was likely Mr Ward’s application for relief from unfair dismissal would be dismissed without further notice.

[6] No material was received from Mr Ward on 3 June 2020.

[7] On 4 June 2020 my Chambers attempted to call Mr Ward on his mobile phone regarding his overdue material. Mr Ward did not answer his phone and a voice message was left advising him that his material were overdue and that, given his failure to attend yesterday’s hearing and failure to comply with the Commission’s directions, I was considering dismissing his application. Mr Ward was requested to contact Chambers by 3pm today in regard to his application. Mr Ward has not returned this call, or file any material with the Commission.

[8] 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.”

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As Mr Ward did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[10] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Ward has failed to respond to numerous attempts made by the Commission to contact him and has provided no explanation to the Commission for his failure to attend the hearing, or his failure to comply with directions of the Commission. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Ward’s application. An order 1 giving effect to this decision will be issued today.

COMMISSIONER

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