Michael Iland Johnson v Collins Restaurants Management Pty Ltd T/A KFC

[2014] FWC 4831

[2014] FWC 4831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Michael Iland Johnson
v
Collins Restaurants Management Pty Ltd T/A KFC
(U2014/43)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 SEPTEMBER 2014

Application for unfair dismissal remedy - Application under s.399A for the Commission to dismiss for failure to comply with Directions.

Background

[1] This decision concerns an application by Mr Michael Iland Johnson (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Collins Restaurants Management Pty Ltd t/a KFC Qld (KFC) (theRespondent).

[2] The Applicant states in the Form F2 Application for an unfair dismissal remedy that the Applicant was dismissed on 17 December 2013 and that the dismissal took effect on that date. The application (U2014/43) (the second application) was made on 6 January 2014.

[3] The Respondent raised a jurisdictional objection to the application, on the basis that:

(a) The Applicant made an earlier application for an unfair dismissal remedy in respect of his dismissal by the Respondent (U2014/10) (the first application); and

(b) The first application was settled to the satisfaction of the Applicant, and a Notice of Discontinuance filed by his representative, Mr Darryn Patrick Gaffey from the Shop, Distributive and Allied Employees Association (SDA) on 16 January 2014.

[4] The second application was listed for conciliation on 27 February 2014. The Conciliator attempted to contact the Applicant several times, but was unsuccessful. On 27 February 2014 correspondence was sent to the Applicant by the Conciliator regarding the failure to attend the telephone conference and the apparent duplication of matters filed, requesting a response within 14 days. No response was received.

[5] The second application was then referred to me. A Directions Hearing was listed for 5 May 2014. During the Directions Hearing several attempts were made to contact the Applicant on the telephone number he had provided, without success.

Application to dismiss

[6] On the 13 June 2014 the Respondent applied for the application to be dismissed pursuant to s.399A of the Act, which 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.

[7] The Commission also has general powers to dismiss an application pursuant to s.587 of the Act which provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Consideration

[8] The Respondent’s application relies upon the power under s.399A(1)(a) of the Act on the basis of the Applicant’s “failure to attend a conference conducted by the FWC”.

[9] Section 399A(1)(a) of the Act empowers the Commission to dismiss an application where the Commission is “satisfied that the Applicant has unreasonably... failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application.” In the present case there was no request for an adjournment from the Applicant, and no apparent reason for the failure to appear.

[10] The Respondent also relies upon s.399A(1)(c) of the Act and asserts that the Applicant “failed to discontinue the application after a settlement agreement has been concluded.” In this regard the Respondent points to the fact that the first application was settled and a Notice of Discontinuance filed by the Applicant’s representative in that matter.

[11] The question for determination is then: was the Applicant’s failure to comply with the Direction of the Commission relating to the application or his failure to discontinue the application unreasonable?

[12] Correspondence in the following terms was sent to the Applicant from my Chambers requesting a response by close of business Friday 29 August 2014.

“Dear Mr Iland Johnson,

I refer to the above matter, and attach a Form1 - Application to dismiss your application (U2014/43).

You are directed to provide written submissions in response to the application by close of business Friday, 29 August 2014.

Should you fail to provide any submissions by the nominated time your application will be dismissed.”

[13] To date no response of any form has been received from the Applicant. The notifications and correspondence to the Applicant have all been directed to the email address provided by the Applicant on his application, which is the same email address that the Applicant has used in the course of this matter. I also note that the Applicant has previously acknowledged and responded to email correspondence from the Commission sent to that email address.

Conclusion

[14] It is clear from the Commission’s file in relation to the first application that the second application is a duplicate application and relates to the same dismissal. It is also clear that the first application was discontinued by the Applicant’s appointed representative.

[15] The Applicant has failed to prosecute U2014/43 and has not attended a conference or responded to correspondence requiring a response or explanation for his failure to attend the conference or the apparent attempt to make a second application in relation to a matter that has been settled and discontinued.

[16] In those circumstances, I am satisfied that, pursuant to s.399A(1)(a) and (c) the Applicant has unreasonably failed to attend a conference in relation to U2014/43 and has also unreasonably failed to discontinue that matter when the duplication was pointed out to him.

[17] Accordingly, I have decided to exercise the discretion in s.399A(1) to dismiss U2014/43. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

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