Michael King v Dowell Windows Pty Ltd
[2022] FWC 1447
•8 JUNE 2022
| [2022] FWC 1447 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael King
v
Dowell Windows Pty Ltd
(U2022/1733)
| DEPUTY PRESIDENT LAKE | BRISBANE, 8 JUNE 2022 |
Application for an unfair dismissal remedy – Application for dismissal of application
pursuant to s.399A – Application dismissed.
Mr Michael King (the Applicant) lodged an Application (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 Dowell Windows Pty Ltd (the Respondent). Mr Rod Marshall of FCB Lawyers for the Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.
Legislation
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 other 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.”
Procedural background
The matter was listed for a staff conciliation on 12 April 2022, by telephone to see if the matter could be resolved between the parties. On 7 April 2022 the Applicant called the Commission and confirmed their mobile number.
On 12 April 2022, the staff conciliator contacted both parties to the matter. The conciliation was abruptly ended and therefore could not be resolved.
On 5 May 2022, the matter was allocated to my Chambers for determination of the merits of the application. A notice of listing and directions were sent from my Chambers on 18 May 2022 setting out dates which the parties were to provide material in respect of the application, putting the parties on notice for a Mention/Directions Conference, and listing the matter for, inter alia, a Hearing before me on 28 June 2022.
On 30 May 2022, my Chambers made several attempts to contact Mr King for the purpose of the conference. The number appeared to be disconnected and the Applicant did not answer the calls.
Later that day, at 15:47pm, my Chambers wrote to the Applicant in the following terms:
“Chambers refers to the Notice of Listing issued to the parties on 18 May 2022.
Mr King has failed to attend the conference after Chambers made several attempts to contact him on his provided number.
King, you are directed to file an explanation and supporting evidence regarding your failure to attend the Conference today by no later than 4.00pm Tuesday 31 May 2022. If you do not wish to proceed with your application then you can file a Form F50 Notice of Discontinuance (a copy of this form is attached).
The parties are reminded of section 399A of the FW Act, which 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.
Note 1: for other 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.”
Please note that the Commission cannot dismiss an application pursuant to section 399A unless the employer makes an application for the Commission to do so. If Dowell Windows Pty Ltd wishes to make an application pursuant to section 399A to have the Application dismissed on the grounds that Mr King failed to attend the conference conducted by the Commission, they may do so using a Form F1 Application (no specific form provided) available on the Fair Work Commission website. A copy of the section 399A application and any supporting documentation should be forwarded to the Commission and copied to the Applicant by 4.00pm Thursday 2 June 2022.”
The Applicant also did not adhere to the directions given by the date given in the directions for the filing of his submissions.
On 2 June 2022, Mr Rod Marshall for the Respondent made the subsequent application and copied the Applicant.
Respondent’s submissions
The Respondent provided that during the Conciliation of 12 April 2022, the parties each gave their opening statement in a joint conference call with the Staff Conciliator. Before private sessions commenced, the Staff Conciliation advised the Respondent to the effect that: “The conciliation is being terminated due to personal reasons with the Applicant.” And advised that the matter would proceed to a member of the Commission.
The Respondent submitted on their From F1 that they have received no contact from the Applicant at the time of lodging their form.
The Respondent also highlighted that the Applicant did not provide any submissions as directed by the date he was directed to and confirmed that they had not received any submissions.
Consideration
The Applicant has failed to provide any explanation for his failure to attend the conference, file submissions by the date directed, nor file a notice of discontinuance.
The failure to comply with directions has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A of the Act.
The process undertaken has been 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 with an opportunity to respond to the application and advised that a failure to do so may result in his application being dismissed.
I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed. Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
<PR742447>
[1] [2021] FWCFB 875 [57].
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