Michael Lynch v Super A-Mart Pty Ltd T/A Super A-Mart

[2017] FWC 1751

[2017] FWC 1751

FAIR WORK COMMISSION

DECISION

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

Michael Lynch
v
Super A-Mart Pty Ltd T/A Super A-Mart
(U2017/463)

COMMISSIONER HAMPTON ADELAIDE, 29 MARCH 2017

Application for relief from unfair dismissal – failure of applicant to attend conference – s.399A application made by employer – no reasonable explanation – unreasonable act or omission – discretion exercised – unfair dismissal application dismissed.

[1] On 16 January 2017, Mr Michael Lynch made an application under s.394 of the Fair Work Act 2009 (the FW Act) for an alleged unfair dismissal by his former employer Super A-Mart Pty Ltd T/A Super A-Mart.

[2] The matter was listed for conciliation by telephone on 20 February 2017 before a Fair Work Conciliator. The conference could not take place due to the Conciliator being unable to contact Mr Lynch, despite several attempts.

[3] The matter was subsequently allocated to the Commission as currently constituted for determination. A directions conference to begin the determination of the unfair dismissal matter was listed for 9 March 2017 and notice of this conference was provided to both parties, including Mr Lynch via his contact details provided on his application. There was no participation by the applicant, or by anyone on his behalf, at this conference.

[4] Following the conference, on 10 March 2017, the respondent made an application under s.399A(1)(a) of the FW Act to dismiss the unfair dismissal application. A copy of the s.399A application was provided to Mr Lynch.

[5] Directions were issued to the parties on 14 March 2017. These directed Mr Lynch to provide to the Commission reasons why it should not dismiss his unfair dismissal application and advised that if a response was not received by 24 March 2017, the Commission would determine the matter on the basis of the materials currently before it.

[6] Mr Lynch has not subsequently filed any material or otherwise communicated any position to the Commission.

[7] Section 399A of the FW 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.”

[8] The evident purposes of s.399A is to provide the Commission with an additional discretion to dismiss unfair dismissal applications where there is a relevant unreasonable act or omission by an applicant in relation to non-attendance at a conference or hearing, non-compliance with a direction or order, or a failure to discontinue a settled application. Unreasonable in this context would include non-compliance without any reasonable excuse. 1

[9] Mr Lynch has been given notice of the s.399A application and the intention of the Commission to deal with that matter in the absence of compliance with the directions issued on 14 March 2017. I am satisfied that he has had an adequate and reasonable opportunity to be heard on the matters and has been afforded procedural fairness.

[10] Accordingly, as advised to the parties, I will now determine the s.399A application on basis of the material presently before the Commission.

[11] I have proceeded on the basis that the conference conducted by the Commission on 10 March 2017 was a conference in relation to the unfair dismissal application as contemplated by s.399A(1)(a) of the FW Act. This would appear to be appropriate given the determinative nature of the conference and the evidence purpose of the provision. I am also satisfied that Mr Lynch failed to attend this conference within the meaning of the FW Act.

[12] The s.399A application has been made by the employer as required by s.399A(2) of the FW Act.

[13] Pursuant to s.399A(1) of the FW Act, the Commission may dismiss the unfair dismissal application if satisfied that Mr Lynch has unreasonably failed to attend a conference conducted by the Commission in relation to the application.

[14] Mr Lynch did not file any material in opposition to the s.399A application, and has not provided any satisfactory reason for his non-attendance at the conference.

[15] I am satisfied that Mr Lynch has unreasonably failed to attend a conference in relation to the unfair dismissal matter. Mr Lynch has also been provided with a reasonable opportunity to advance his case and has not done so. Indeed, Mr Lynch has failed to engage with the Commission at all regarding his application and has, in effect, abandoned the matter. In all of the circumstances I consider that it is appropriate to exercise my discretion to dismiss the unfair dismissal application.

[16] Accordingly, Mr Lynch’s unfair dismissal application is to be dismissed. An order 2 to that end is being issued in conjunction with this decision.

COMMISSIONER

 1   See the Explanatory Memorandum to the Fair Work Amendment Act 2012 at 161 - 163.

 2   PR591368.

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<Price code A, PR591367>