Michael Craik v Mil-Tek Waste Solutions Qld Pty Ltd
[2023] FWC 2930
•9 NOVEMBER 2023
| [2023] FWC 2930 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Craik
v
Mil-Tek Waste Solutions Qld Pty Ltd
(U2023/7155)
| DEPUTY PRESIDENT LAKE | BRISBANE, 9 NOVEMBER 2023 |
Application for an unfair dismissal remedy – application for dismissal of application pursuant to s.399A – application dismissed.
Mr Michael Craik (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Mil-Tek Waste Solutions Qld Pty Ltd (the Respondent). The Respondent’s representative has subsequently made an application for the matter to be dismissed pursuant to s.399A(1)(a) of the Act.
Procedural background
On 26 September 2023, this matter was allocated to me after being conciliated by another member of the Commission on 25 September 2023.
On 3 October 2023, I issued the following Directions: a hearing was listed for 10:00am on 9 November 2023. The Applicant was to file their submissions by 4:00pm on 17 October 2023, the Respondent was to file their submissions by 4:00pm on 31 October 2023, and the Applicant was to reply by 4:00pm on 6 November 2023.
On 20 October 2023, after the Applicant failed to file his submissions on 17 October 2023, the Respondent’s representative contacted my Chambers seeking to confirm if the Applicant had filed any submissions. I provided the Applicant a further opportunity to file submissions by 23 October 2023.
On 27 October 2023, having received no submissions from the Applicant, the Respondent filed their Form F1 requesting that the matter be dismissed pursuant to s.399A(1)(b) of the Act. On the same day, my Chambers acknowledged receipt of the Form F1 and wrote to the parties confirming the Form F1 would be mailed to the Applicant’s postal address due to his lack of response.
On 31 October 2023, in accordance with the directions, the Respondent filed submissions in the matter and restated their intention to pursue the s.399A dismissal application.
On 3 November 2023, my Chambers notified the parties that the matter would proceed to hearing on 9 November 2023, and the issue of the Applicant’s non-compliance would be addressed at the hearing.
On 7 November 2023, my Chambers contacted the Applicant by phone to confirm if he wished to proceed with the application and stated he would need to file his material as soon as possible if he wished for any further material to be considered by me. Furthermore, my Chambers sent an email attaching the Hearing date and details. Following the call on the same day, the Applicant filed a two page timeline of the matter, but no further submissions.
On 9 November 2023, the Applicant did not appear at the Teams hearing. My Chambers contacted the Applicant notifying him of the hearing and inviting him to log on immediatley. The Applicant responded to ‘do whatever’ with the application and did not join the Microsoft Teams link.
The Respondent’s submissions
The Respondent in their Form F1 highlighted that the Applicant failed to comply with
the Directions of the Commission by failing to file submissions on two occasions.
The Respondent sought that the matter be dismissed pursuant to s.399A(1)(b) of the Act.
Legislation
Section 399A of the 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.”
Consideration
The Applicant failed to engage with the Commission in a timely manner and failed to attend the hearing after expressly being invited.
Since being allocated this matter, I have received no communication from the Applicant, other than the phone calls initiated by my Chambers and the email containing the timeline.
Despite Chambers attempting to communicate with the Applicant and allowing an additional four working days for the Applicant to contact Chambers and file submissions, the Applicant has failed to engage with the Commission in a meaningful manner to prosecute his case.
The failure to file submissions and to provide reasons why he has not followed the Directions has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A(1)(b) of the Act.
The process undertaken has been in accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent as a Form F1, and a copy was served on the Applicant. The Applicant was provided time to provide a response to the application and was advised that a failure to do so may result in his application being dismissed.
Conclusion
I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed for failure to follow a Direction from the Commission and to attend the hearing. Accordingly, I order that the application be dismissed.
I Order accordingly.
DEPUTY PRESIDENT
[1] [2021] FWCFB 875, [57].
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