Michael Comyns v Red Sun Camels Pty Ltd T/A Red Sun Camels

[2019] FWC 126

[2019] FWC 126

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Comyns
v
Red Sun Camels Pty Ltd T/A Red Sun Camels
(U2018/8786)

DEPUTY PRESIDENT BINET PERTH, 11 JANUARY 2019

Application for an unfair dismissal remedy – failure to attend a conference – application to dismiss pursuant to s.399A – application dismissed.

[1] On 29 August 2018, Mr Michael Comyns (Comyns) 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 Red Sun Camels Pty Ltd (Red Sun Camels).

[2] On 1 October 2018, Red Sun Camels lodged a Form F3 Employer Response to the Application.

[3] On 2 November 2018, the parties participated in a telephone conciliation with a FWC staff conciliator but the parties were unable to resolve the issues in dispute.

[4] The Application was allocated to Deputy President Binet and the parties were directed to attend a conference at 10am on Tuesday 4 December 2018 (Conference). Mr Geappen of Red Sun Camels attended the FWC in person to participate in the Conference at the listed time. Mr Comyns did not attend the Conference in person nor did he make any prior contact with Chambers to advise that he would not attend the Conference. Chambers attempted to contact Mr Comyns by telephone at 10:11am and again at 10:20am but he did not answer the call. Chambers left a voice message inquiring as to his whereabouts and requesting that he contact Chambers urgently.

[5] In light of Mr Comyns’ failure to attend the Conference, Red Sun Camels were invited on 5 December 2018 to apply to have the Application dismissed pursuant to section 399A of the FW Act (Dismissal Application). Red Sun Camels were given until 12 noon, 10 December 2018 in which to file a Dismissal Application.

[6] Mr Comyns 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 Comyns was directed to file his material by 12 noon, 12 December 2018.

[7] 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.”

[8] No materials were received by either party by either of the due dates stipulated above. On 14 December 2018, my associate contacted Mr Geappen of Red Sun Camels to enquire whether Red Sun Camels had intended to make a Dismissal Application. Mr Geappen stated he had not received the email of 5 December 2018 inviting Red Sun Camels to make a Dismissal Application and had been in transit from Perth back to Broome for several days. Mr Geappen supplied an alternative email address and confirmed Red Sun Camels intended to file a Dismissal Application.

[9] In light of this information, on 17 December 2018, the parties were given an extension in which to file materials. Red Sun Camels were advised if they wished to make a Dismissal Application, they should do so by 12 noon, 18 December 2018. Mr Comyns was invited to provide a response to any Dismissal Application by 12 noon, 20 December 2018. In the event that Red Sun Camels chose not to file a Dismissal Application, directions for the matter to be heard by way of a hearing were issued to the parties on the same date.

[10] Red Sun Camels filed a Dismissal Application on 18 December 2018.

[11] On 18 December 2018, upon receipt of the Dismissal Application, Mr Comyns’ was invited to file submissions providing reasons why the FWC should not dismiss his application and evidence or other documentary material supporting those reasons. This material was to be provided to the FWC and Red Sun Camels by 12 noon, 21 December 2018.

[12] Mr Comyns’ was also notified that if he did not comply with the directions and file submissions his application for an unfair dismissal remedy would be dismissed.

[13] To date the FWC has not received any communication from Mr Comyns.

[14] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) 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

[15] On the application of Red Sun Camels and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application on the ground that Mr Comyns failed to comply with directions of the FWC to attend a Conference.

[16] An Order (PR703724) giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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