Mr Bahdyen Owen-Cooper v M & K Stafford Engineering as trustee for Stafford Family Trust

[2019] FWC 555

[2019] FWC 555

FAIR WORK COMMISSION

DECISION

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

Mr Bahdyen Owen-Cooper
v
M & K Stafford Engineering as trustee for Stafford Family Trust
(U2018/12097)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 31 JANUARY 2019

Application for an unfair dismissal remedy – s.399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by M & K Stafford Engineering Pty Ltd as trustee for the Stafford Family Trust (Respondent) pursuant to s.399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by its former employee, Mr Bahdyen Owen-Cooper, pursuant to s.394 of the Act (Application).

Background

[2] Mr Owen-Cooper lodged his Application dated 22 November 2018 in the Fair Work Commission (Commission).

[3] On 19 December 2018, a conciliation conference was conducted by a conciliator of the Commission. At the conciliation conference there was no appearance by or on behalf of Mr Owen-Cooper.

[4] The matter was allocated to my chambers on 3 January 2019.

[5] On 10 January 2019, directions were made to prepare the matter for a hearing or determinative conference.

[6] The matter was listed for a directions hearing, by telephone, at 9:00am on 25 January 2019. A Notice of Listing was sent to Mr Owen-Cooper’s nominated email address on 11 January 2019.

[7] At the directions hearing on 25 January 2019, there was no appearance by or on behalf of Mr Owen-Cooper. Shortly after 9:00am my Associate attempted to contact Mr Owen-Cooper on the mobile number listed in the Application. A voicemail was left requesting Mr Owen-Cooper to urgently contact my chambers.

[8] At 9:19am on 25 January 2019, my Associate sent an email in the following terms to Mr Owen-Cooper and the Respondent:

“Dear Mr Owen-Cooper,

This matter was listed for directions by telephone before Deputy President Saunders at 9:00am this morning pursuant to a Notice of Listing sent to the parties 11 January 2019 at 2:25pm.

There was no appearance by or on behalf of you, the applicant, at the directions hearing this morning. Mr Stafford and Miss Stafford participated in the directions hearing on behalf of the respondent.

This matter will be listed for a further directions hearing (by telephone) on 31 January 2019 at 10:00am. It is necessary for both parties to participate in this directions hearing. If you do not participate in the directions hearing (by telephone) on 31 January 2019 at 10:00am, your unfair dismissal application may be dismissed without further prior notice to you.”

[9] The matter was listed for a second directions hearing, by telephone, at 10:00am on 31 January 2019. A Notice of Listing was sent to Mr Owen-Cooper’s nominated email address at 9:20am on 25 January 2019.

[10] At the directions hearing at 10:00am on 31 January 2019 there was no appearance by or on behalf of Mr Owen-Cooper.

[11] My chambers did not receive any communication from, or on behalf of, Mr Owen-Cooper in response to the voicemail left by my Associate, nor has it received any communication from, or on behalf of, Mr Owen-Cooper as at the time this decision is published.

Application for dismissal

[12] During the directions hearing on 31 January 2019, the Respondent made an application pursuant to s.399A of the Act for the Application to be dismissed on the basis that Mr Owen-Cooper had failed to attend the directions hearings on 25 and 31 January 2019 in relation to the Application.

[13] Section 399A of the Act provides as follows:

“(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 powers under subsection (1) on application by the employer.”

[14] The discretion of the Commission to dismiss an application under s.399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances. 1

[15] In light of the history of the proceedings outlined above and the failure of Mr Owen-Cooper to attend the directions hearings held on 25 and 31 January 2019 in this matter without explanation, I am satisfied that Mr Owen-Cooper has unreasonably failed to attend a hearing held by the Commission in relation to his Application. I am also satisfied that there has been an application by the employer in accordance with s.399A(2).

[16] In the circumstances, I exercise my discretion pursuant to s.399A(1)(a) of the Act to dismiss Mr Owen-Cooper’s unfair dismissal Application.

DEPUTY PRESIDENT

Appearances:

No appearance for Mr Owen-Cooper.

Mr Stafford for the Respondent.

Hearing details:

2019.

Newcastle (by telephone):

January 31.

Printed by authority of the Commonwealth Government Printer

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 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]