Mr Alexander Irwin v The Trustee for Fawcett Plumbing Trust
[2024] FWC 3513
•17 DECEMBER 2024
| [2024] FWC 3513 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Alexander Irwin
v
The Trustee for Fawcett Plumbing Trust
(U2024/13008)
| COMMISSIONER THORNTON | ADELAIDE, 17 DECEMBER 2024 |
Application for an unfair dismissal remedy – Application pursuant to s399A to dismiss application for unfair dismissal remedy – s399A application granted – matter dismissed.
Mr Alexander Irwin (the Applicant) lodged an application for a remedy for unfair dismissal on 30 October 2024, alleging he was dismissed from employment on 28 September 2024.
The Trustee for Fawcett Plumbing Trust (the Respondent) filed a Form F3 on 10 November 2024, objecting to jurisdiction on the basis that the Applicant was not dismissed and did not meet the minimum employment period, given the Respondent says it is a small business. Despite those objections, the Respondent indicated that they were willing to participate in conciliation.
Mr Irwin’s application was listed for a staff conciliation conference on 20 November 2024. The Respondent attended the conference but there was no attendance by Mr Irwin. A file note on the Commission’s file indicates that he was contacted by telephone on three occasions at the time the conciliation was listed and messages were left for him.
Mr Irwin was then sent correspondence by the Commission also on 20 November 2024, advising him that he did not attend the listed conference and if he wanted the matter to proceed to conciliation he was to email a request for the conference to be re-listed within two working days.
Also on 20 November 2024, the Respondent contacted the Commission advising when they were available to attend a conciliation conference.
The Commission’s file evidences that no response was received from the Applicant by 25 November 2024 and the matter was therefore ultimately transferred to my Chambers on 26 November 2024.
On 29 November 2024, my Chambers listed the matter for a directions hearing. The notice of listing required the parties to confirm receipt of the notice and confirm the contact details of those attending the hearing by no later than 12:00pm the business day prior to the hearing. The Respondent provided their contact details but there was no response from the Applicant.
The directions hearing was held on 3 December 2024 to discuss the progression of the matter. There was no attendance from the Applicant at the directions hearing.
The Respondent made clear at the directions hearing of 3 December 2024 that they wished to seek dismissal of the application.
Following the directions hearing, also on 3 December 2024, the Respondent’s representative filed a Form F1 seeking dismissal of the Applicant’s claim pursuant to section 399A of the Fair Work Act 2009 (Cth) (the Act).[1]
On 9 December 2024, my Chambers sent an email to the Applicant, attaching the Respondent’s s.399A application and saying as follows:
“Dear Mr Irwin,
RE: U2024/13008 - Mr Alexander Irwin v The Trustee for Fawcett Plumbing Trust
I refer to the above matter, which has been referred for arbitration before Commissioner Thornton.
After you failed to attend the directions hearing listed on 3 December 2024, the Respondent has filed an application under section 399A of the Fair Work Act 2009 to have your matter dismissed. Their application is attached.
Section 399A of the Act is as follows:
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.
The matter will be listed for a further directions hearing to address the application on Monday, 16 December 2024 at 3:30pm. Please see the attached Notice of Listing.
You are invited to provide a response to the application including any reasons for your non-attendance at the conference and directions hearing by noon on Friday, 13 December 2024.
If the Commission does not receive a response from you to this correspondence or you do not attend the hearing on 16 December 2024, your matter may be dismissed pursuant to section 399A without further notice to you.”
The Applicant did not respond to the Commission by noon on Friday, 13 December 2024.
My Chambers attempted to contact Mr Irwin by telephone on 16 December 2024 in advance of the afternoon hearing to ascertain if he was attending the hearing, and left an urgent message for the Applicant. Mr Irwin has not, to date, returned that telephone call or otherwise made contact with the Commission.
Mr Irwin again failed to attend the hearing of the Respondent’s section 399A application on 16 December 2024.
Consideration
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.
A Full Bench of the Commission set out the process that should be followed before the Commission dismisses an application under section 399A of the Act in Lockyear v Cox[2]:
“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1.An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1.14 Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2.The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3.The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4.In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5.A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.
[58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief.” (footnote omitted)
The application was made by the Respondent employer in accordance with section 399A(2) by way of filing a Form F1.
The application was sent by email to the Applicant, at the email address provided by the Applicant when he filed his application, on 9 December 2024. The Applicant was invited to respond to the application and provide reasons for his non-attendance by noon on Friday, 13 December 2024.
The same email also advised the Applicant that the matter would proceed to a hearing on 16 December 2024 to address the Respondent’s application to dismiss the matter. The email also confirmed that should the Applicant not respond to the email or attend the hearing, “your matter may be dismissed pursuant to section 399A without further notice to you.”
Earlier on the day of the hearing, my Chambers also left a telephone message for the Applicant in an effort to ensure he was aware of the application and the hearing later in the day. A message was left for him.
I am satisfied that the Applicant has unreasonably failed to attend two directions hearings conducted by the Commission in relation to his application and has provided no explanation as to why he has failed to attend those hearings. The Applicant has also failed to take up an invitation to provide a response to the s.399A application. The Applicant was on notice that if he failed to attend the hearing in which the Respondent’s application was to be addressed, the Commission may dismiss his application without providing him with another opportunity to provide reasons for his non-attendance.
The Commission has been corresponding with Mr Irwin using the email address he provided in his Form F2 Application. The Commission has also attempted to contact the Applicant by telephone on more than one occasion. Mr Irwin has not made any contact with the Commission since he filed his application 30 October 2024.
The Respondent’s application to have Mr Irwin’s claim for an unfair dismissal remedy dismissed, is granted. An order confirming the dismissal of Mr Irwin’s claim will be published concurrently with this decision.[3]
COMMISSIONER
[1] Regarding the requirements to lodge an application, see Lockyear v Cox[2021] FWCFB 875.
[2] [2021] FWCFB 875.
[3] PR782539.
Printed by authority of the Commonwealth Government Printer
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