Mark Bastick v Aboriginal Legal Rights Movement Inc

[2015] FWC 713

[2015] FWC 713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Bastick
v
Aboriginal Legal Rights Movement Inc
(U2014/12802)

COMMISSIONER HAMPTON ADELAIDE, 30 JANUARY 2015

Application for relief from unfair dismissal - no compliance with directions - s.399A application made by employer - no reasonable explanation - discretion exercised - unfair dismissal application dismissed.

[1] On 24 September 2014, Mr Mark Bastick made an application for a remedy in relation to an alleged unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act). He was apparently dismissed from his employment with Aboriginal Legal Rights Movement Inc (the Respondent) on 12 September 2014.

[2] The unfair dismissal application was listed for conciliation with a Fair Work Commission conciliator on 17 October 2014. The matter was not resolved and as a result the matter was allocated to me for determination.

[3] The unfair dismissal application was the subject of a telephone directions conference before the Commission on 6 November 2014. Both Mr Bastick and a representative of the Respondent participated in the conference and the matter was set down for Hearing.

[4] Following the conference, on 11 November 2014, Directions were issued to the parties in relation to the matter. Amongst other requirements, Mr Bastick was directed to file submissions and/or any other evidentiary material in relation to the unfair dismissal matter by no later than the Monday 22 December 2014.

[5] Despite there being no obligation to do so, on 22 December 2014 and 12 January 2015, staff of the Commission attempted to contact Mr Bastick in relation to the absence of any submissions from him and to seek confirmation as to whether he intended to proceed with the matter.

[6] During this time, the Respondent filed its materials 1 as required by the Commission’s directions and sought clarification as to whether Mr Bastick had done likewise.

[7] On 12 January 2015, Mr Bastick contacted the Commission by telephone and advised that he did wish to proceed with his unfair dismissal matter. He also indicated, in effect, that he had other priorities and that he would contact the Commission via email to request revised compliance dates. No email was subsequently received by the Commission.

[8] On 19 January 2015, the Respondent made an application to dismiss the unfair dismissal application under s.399A(1)(a) of the FW Act.

[9] On 20 January 2015, further directions were issued by the Commission confirming the Respondent’s s.399A application and directing Mr Bastick to file submissions and/or any other material in relation to the Respondent’s application to dismiss the unfair dismissal matter. Mr Bastick was expressly advised that if he failed to comply with these directions by Wednesday 28 January 2015, the s.399A application would be dealt with on the basis of the material then before the Commission without further notice or hearing.

[10] Mr Bastick has not subsequently filed any material or otherwise communicated any position to the Commission.

[11] 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.

....

(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.”

[12] The evident purposes of s.399A is to provide the Commission with an additional discretion to dismiss unfair dismissal applications where there is a relevant unreasonable act or omission by an applicant in relation to non-attendance at a conference or hearing, non-compliance with a direction or order, or a failure to discontinue a settled application. Unreasonable in this context would include non-compliance without any reasonable excuse. 2

[13] Mr Bastick has been given notice of the s.399A application and the intention of the Commission to deal with that matter in the absence of compliance with the later directions issued on 20 January 2015. I am satisfied that he has had an adequate and reasonable opportunity to be heard on the matters and has been afforded procedural fairness.

[14] Accordingly, as advised to the parties, I will now determine the s.399A application on basis of the material presently before the Commission.

[15] The directions issued by the Commission on 11 November 2014 are directions relating to the unfair dismissal matter as contemplated by s.399A(1)(b) of the FW Act. I am satisfied that Mr Bastick has failed to comply with those directions.

[16] The s.399A application has been made by the employer as required by s.399A(2) of the FW Act.

[17] Accordingly, pursuant to s.399A(1) of the Act, the Commission may dismiss the unfair dismissal application if satisfied that Mr Bastik has unreasonably failed to comply with the directions.

[18] Mr Bastick did not file any material in opposition to the s.399A application, and has not provided any satisfactory reason for non compliance with the relevant directions.

[19] I am satisfied that Mr Bastick has unreasonably failed to comply with a direction of the Commission in relation to the unfair dismissal matter. Mr Bastick has also been provided with a reasonable opportunity to advance his case and has not done so. In all of the circumstances I consider that it is appropriate to exercise my discretion to dismiss the unfair dismissal application.

[20] Accordingly, Mr Bastick’s unfair dismissal application is to be dismissed. An order 3 to that end is being issued in conjunction with this decision.

 1   Concerning a request for permission to be represented.

 2   See the Explanatory Memorandum to the Fair Work Amendment Act 2012 at 161 - 163.

 3   PR560548.

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<Price code A, PR560537>