Mr Andrew Steel v Australian Laboratory Services Pty Ltd
[2023] FWC 2581
•9 OCTOBER 2023
| [2023] FWC 2581 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Andrew Steel
v
Australian Laboratory Services Pty Ltd
(U2023/6650)
| DEPUTY PRESIDENT BINET | PERTH, 9 OCTOBER 2023 |
Application for an unfair dismissal remedy
On 20 July 2023, Mr Andrew Steel (Mr Steel) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Australian Laboratory Services Pty Ltd (ALS).
On 10 August 2023, ALS filed a Form F3 - Employer response to unfair dismissal application.
On 12 September 2023 the Application was allocated to my Chambers for determination.
Directions were issued to parties on 18 September 2023 which required Mr Steel to file his materials in relation to the merit of the Application by 4pm 28 September 2023 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.
On Thursday, 21 September 2023 the Parties were sent a Notice of Listing informing them that they were required to attend an in person Conference at 4:00pm (AWST) on Tuesday, 26 September 2023 before myself at the FWC in Perth (Conference).
On Tuesday, 26 September 2023, ALS attended the FWC to participate in the Conference. Mr Steel did not attend the Conference, nor did he make any contact with Chambers to advise that he would not be in attendance or to seek an adjournment. Chambers endeavoured to contact Mr Steel via telephone and email shortly after the listed commencement time of the Conference, but he could not be reached.
On 26 September 2023 ALS made an application under section 399A of the FW Act for Mr Steel’s Application to be dismissed (Dismissal Application) on the grounds that he failed to attend a conference.
On 27 September 2023 Chambers sent an email to Mr Steel directing him to file by 4pm (AWST) Friday 29 September 2023 reasons and evidence as to why the Application should not be dismissed.
On Wednesday 27 September 2023 Mr Steel sent an email to Chambers indicating that he had been in a remote area and had had no internet coverage. He requested that the Conference be rescheduled however he did not seek any extension to file his materials. It is clear from his email to Chambers that at least on Wednesday 27 September 2023 that he was located in an area with internet coverage in which he could have retrieved the Notice of Listing and the Directions.
On 29 September 2023, Chambers sent an email to Mr Steel directing him to provide reasons and evidence as to why he had failed to file his materials in accordance with the Directions or to seek an extension of time to do so. In the same email Mr Steel was granted an extension of time until 4pm (AWST) Thursday 5 October 2023 to file his materials. Mr Steel was informed that if he did not provide reasons why he had failed to file his materials and if he did not file those materials by 4pm (AWST) Thursday 5 October 2023 the Application may be dismissed pursuant to s399A of the FW Act without further notice.
Mr Steel failed to file any materials in accordance with the Directions or any reasons or evidence as to why he had failed to file those materials by 4pm (AWST) Thursday 5 October 2023, or since.
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.”
Mr Steel failed to file the materials he was directed to file by the dates specified. As at the date of this decision Mr Steel has still not filed any materials in support of his Application or provided any reasons why he has failed to file his materials. I am satisfied that Mr Steel has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of ALS and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.
An Order to this effect will be issued with this decision.[1]
DEPUTY PRESIDENT
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<PR766928>
[1] PR766929.
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