Matthew Thomas Jeffery v Veris Australia Pty Ltd
[2022] FWC 2873
•26 OCTOBER 2022
| [2022] FWC 2873 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Thomas Jeffery
v
Veris Australia Pty Ltd
(U2022/8166)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 26 OCTOBER 2022 |
Application under s 399A – failure to attend a hearing – application dismissed
This decision concerns an application made under s 399A of the Fair Work Act 2009 (Cth) (Act) by Veris Australia Pty Ltd (respondent) to dismiss an unfair dismissal application brought against it by Mr Matthew Jeffery.
For the reasons that follow, the respondent’s application under s 399A is granted. Mr Jeffery’s application for an unfair dismissal remedy is dismissed.
Procedural context
On 8 August 2022, Mr Jeffery made an application for an unfair dismissal remedy pursuant to s 394 of the Act. Mr Jeffery alleges that he was unfairly dismissed by the respondent.
On 1 September 2022, the respondent filed its Form F3 response in which it raised a jurisdictional objection to the application, being that Mr Jeffery earned more than the high-income threshold for dismissals after 1 July 2022. The respondent sought that the jurisdictional objection be determined prior to the application proceeding to conciliation.
Directions were issued by my Chambers on 19 September 2022 for the filing of materials in respect of the jurisdictional objection. The directions were accompanied by a notice of listing confirming the time, date and method of the hearing.
Pursuant to the directions, the respondent filed an outline of submissions and other material in support of its jurisdictional objection on 27 September 2022.
The directions required Mr Jeffery to file his responsive materials by 4:00pm on 4 October 2022, however no materials were received by the Commission on this date. In the absence of any correspondence from Mr Jeffery explaining his non-compliance, my Chambers made attempts to contact Mr Jeffery by telephone on 5 October and 7 October 2022, leaving detailed voice messages on each occasion. On 10 October 2022, an email was sent to Mr Jeffery advising that Chambers had not received a response and noting that the matter was scheduled for a jurisdictional hearing the following day.
The jurisdictional hearing was scheduled to proceed at 10:00am on 11 October 2022 by Microsoft Teams. Shortly prior to the commencement of the hearing, the respondent joined the hearing in accordance with the details provided on the notice of listing. At the time the hearing was due to commence, Mr Jeffery had not announced his attendance.
My Chambers made four telephone calls to Mr Jeffery between 10:00am and 10:15am on the mobile number provided in the Form F2 application. Each telephone call went unanswered. The matter was called on at around 10:15am, absent Mr Jeffery.
The respondent made an application to dismiss Mr Jeffrey’s application for an unfair dismissal remedy, having regard to Mr Jeffery’s non-attendance at the jurisdictional hearing, in addition to Mr Jeffrey’s failure to comply with the Commission’s direction to file material on 4 October 2022. I took this to be an application pursuant to s 399A of the Act (s 399A Application). I waived compliance with the Fair Work Commission Rules 2013[1] and accepted the oral application made by the respondent.
Following the hearing, I caused an email to be sent to Mr Jeffery which noted his non-attendance at the jurisdictional hearing and the attempts made to contact him. The email explained that the respondent had made the s 399A Application and provided the following directions for its determination:
“What happens next?
The applicant is now being given an opportunity to respond to the s 399A Application.
Deputy President Millhouse directs the applicant to file with the Commission and serve on the respondent an explanation as to why the Commission should not dismiss the unfair dismissal application in light of the applicant’s failure to (a) attend the hearing in relation to his application, and (b) comply with a direction of the Commission in relation to the application.
The applicant must file and serve evidence or other material to support their reasons. For example, if you are or have been unwell the Commission requires medical evidence. This material is required by close of business on 14 October 2022.
If the applicant fails to provide a response to the s 399A Application, the Deputy President may proceed to determine the s 399A Application on the material before the Commission. This may result in the dismissal of the applicant’s claim for an unfair dismissal remedy.”
(emphasis omitted)
Mr Jeffrey did not file any material in response to the s 399A Application, and has not otherwise engaged with the Commission in relation to his application for an unfair dismissal remedy.
Consideration
Releantly, s 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.
....
(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.
Section 399A was the subject of consideration by the Full Bench in Lockyear v Cox[2] where it was relevantly said as follows:
[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.
Mr Jeffrey was appropriately informed of the s 399A Application and given an adequate opportunity to respond to it. The correspondence to Mr Jeffrey made clear that the Commission would proceed to determine the s 399A Application in the absence of any response him. I am satisfied that the first three steps set out in Lockyear v Cox have been met. I turn now to consider the s 399A Application.
Mr Jeffery has not filed a response to the s 399A Application. I therefore conclude that Mr Jeffery has not provided a reasonable explanation for his non-attendance at the jurisdictional hearing on 11 October 2022. I am therefore satisfied, for the purposes of s 399A(1)(a) of the Act, that Mr Jeffery’s failure to attend the hearing on 11 October 2022 was unreasonable.
Accordingly, I am empowered to exercise the discretion afforded pursuant to s 399A of the Act to dismiss Mr Jeffery’s application for an unfair dismissal remedy. While such discretion is to be exercised with caution, I am satisfied that it should be exercised having regard to the following circumstances:
(a) Mr Jeffery has not engaged with the Commission since prior to the issuance of directions on 19 September 2022 and did not comply with the direction to file materials in respect of the jurisdictional hearing;
(b) Mr Jeffery unreasonably failed to attend the jurisdictional hearing in relation to his application for an unfair dismissal remedy on 11 October 2022;
(c) the Commission has afforded Mr Jeffery an adequate opportunity to respond to the s 399A Application or otherwise engage with the Commission about his unfair dismissal application; and
(d) Mr Jeffery has been on notice of the consequences of his non-compliance since 11 October 2022.
Conclusion and disposition
For the reasons given, the respondent’s application under s 399A is granted. Mr Jeffery’s application for an unfair dismissal remedy is dismissed pursuant to s 399A(1) of the Act.
DEPUTY PRESIDENT
[1] Rule 6(1)
[2] [2021] FWCFB 875
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