Mr Brett Dalton-Downward v The Trustee for Newform Precast Unit Trust

[2025] FWC 1440

[2025] FWC 1440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Brett Dalton-Downward
v

The Trustee for Newform Precast Unit Trust

(U2025/2582)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 26 MAY 2025

Application for an unfair dismissal remedy – application under s 399A – failure to comply with directions of the Commission – s 399A application granted – application dismissed.

1. This decision concerns an application made under s 399A of the Fair Work Act 2009 (Cth) (Act) by the Trustee for Newform Precast Unit Trust, to dismiss an unfair dismissal application brought against it by Mr Brett Dalton-Downward.

1. For the reasons that follow, the respondent’s application under s 399 is granted. Mr Dalton-Downward’s application for an unfair dismissal remedy is dismissed.

Procedural context

1. On 5 March 2025, Mr Dalton-Downward through his paid agent, Unfair Dismissals Australia, made an application for an unfair dismissal remedy pursuant to s 394 of the Act. On 29 April 2025, Mr Dalton-Downward’s paid agent attended a conciliation conference convened by the Commission in relation to the application, but Mr Dalton-Downward did not attend and was not contactable by either the Commission or his representative.

1. Upon allocation of the application to my Chambers on 9 May 2025, the matter was listed for a Case Management Conference, to proceed at 10:00am (AEST) on 14 May 2025 via Microsoft Teams. The parties were provided with a copy of the Notice of Listing and directed to provide their appearances by 4:00pm on 12 May 2025. The respondent provided its appearances on 12 May 2025 pursuant to the direction. Appearances were not provided by Mr Dalton-Downward or his representative.

1. On 14 May 2025 at 9:18am, shortly prior to the commencement of the Case Management Conference, my Chambers emailed the parties noting that Mr Dalton-Downward had not provided his appearance as directed. My Chambers directed Mr Dalton-Downward or his representative to file an appearance for the conference as soon as possible.

1. Approximately 1 minute later, at 9:19am, the applicant’s representative emailed my Chambers stating that it would not be participating in the conference. Later correspondence confirmed the representative’s position that Mr Dalton-Downward has been, and remains, unresponsive to its attempts to contact him.

1. At approximately 9:20am, my Chambers made two unsuccessful attempts to call Mr Dalton-Downward. At approximately 9:30am, Mr Dalton-Downward telephoned my Chambers and was advised that the Case Management Conference would commence at 10:00am that day and he had not provided his appearance, as directed. Mr Dalton-Downward requested an email with the Microsoft Teams link for the conference and asked that Chambers treat his telephone call as confirmation of his intention to appear on his own behalf.

1. At 9:33am, my Chambers emailed the parties attaching the Notice of Listing, inclusive of the Microsoft Teams link, and explained that Chambers had spoken with Mr Dalton-Downward regarding his intention to appear.

1. At 10:00am when the Case Management Conference was due to commence, there was no appearance for the applicant despite Mr Dalton-Downward’s request for the Microsoft Teams link, and his advice that he would appear for himself. My Chambers attempted to call Mr Dalton-Downward approximately six times without success. At approximately 10:06am, my Chambers emailed the parties noting that Mr Dalton-Downward had not appeared. The email directed Mr Dalton-Downward to join the conference urgently and provided the Microsoft Teams link again. Despite the Microsoft Teams link being effective in joining the respondent and the respondent’s representative to the conference, there was no appearance by the applicant.

1. The Case Management Conference was called on at around 10:15am. The respondent’s representative was granted permission to represent the respondent at the conference. The respondent made an application to dismiss Mr Dalton-Downward’s unfair dismissal application due to his non-attendance at the conference and failure to engage with the application since it was filed. This was confirmed to be an application pursuant to s 399A of the Act (s 399A Application). I waived compliance with the Fair Work Commission Rules 2024 and accepted the oral application made by the respondent.

1. Following the Case Management Conference, my Chambers sent correspondence to Mr Dalton-Downward (to the email address that he supplied to the Commission in his application in addition to a supplementary email address for him) and the respondent. The email referred to the s 399A Application that had been made by the respondent and issued the following directions:

What happens next?

If the respondent wishes to summarise its s 399A Application in writing it may do so by 4:00pm today, 14 May 2025.

The applicant will then be given an opportunity to respond to the s 399A Application.

The applicant’s response

Deputy President Millhouse directs the applicant to file with the Commission and serve on the respondent a response to the s 399A application which must include an explanation as to why the Commission should not dismiss his unfair dismissal application for his non-compliance. The applicant must file and serve evidence or other material to support his position. For example, if the applicant is or has been unwell, the Commission requires a medical certificate.

The applicant’s response is required by 4:00pm on Monday 19 May 2025.

1. The email was sent with the following important note:

Important note

The applicant is advised that if he fails to provide any material in response to the s 399A Application, the Commission may proceed to deal with the s 399A Application on the papers, based on the material before it. This may result in the dismissal of the applicant’s claim for an unfair dismissal remedy in a decision which will be published on the Commission’s website.

1. Pursuant to the directions, the respondent filed written submissions in which it set out the basis for its s 399A Application. In summary, the respondent based the application upon Mr Dalton-Downward’s failure to attend the conciliation conference on 29 April 2025, his failure to engage with the Commission since filing his application for an unfair dismissal remedy, and his failure to attend the 14 May 2025 Case Management Conference.

1. Mr Dalton-Downward did not file responsive submissions by the 19 May 2025 compliance date, or at all. On 22 May 2025, my Chambers sent correspondence to the parties advising that Mr Dalton-Downward had not responded to the s 399A Application and accordingly, the application would be determined on the papers.

Legislative context

1. Relevantly, s 399A of the 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 discretion power under subsection (1) on application by the employer.

(3)    This section does not limit when the FWC may dismiss an application.

1. Section 399A was the subject of a Full Bench decision in Lockyear v Cox[1] where it was relevantly said that:

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. 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.

1. The power to dismiss a substantive application should only be exercised with caution, noting that it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to law.[2]

1. The exercise of the Commission’s powers under s 399A of the Act to dismiss an unfair dismissal application involves the exercise of a broad discretion. This type of matter involves two discretionary decisions. First, that the applicant has unreasonably failed to, in this case, attend conferences conducted by the Commission in relation to the application. Second, upon satisfaction that there has been an unreasonable failure to comply, the decision maker has a further discretionary decision as to whether the unfair dismissal application should be dismissed.[3]

Consideration

1. Contrary to the 14 May 2025 directions, Mr Dalton-Downward has not filed any supporting materials in response to the s 399A Application. Nor has Mr Dalton-Downward taken any steps to engage with the Commission since he was placed on notice that the respondent had made the s 399A Application seeking the dismissal of his unfair dismissal application.

1. I consider that the time afforded to Mr Dalton-Downward to respond, and the information provided to him regarding the determination of the s 399A Application following his missed compliance deadline, reflect all reasonable steps required by the Commission in the circumstances. It follows that the first three steps set out in Lockyear v Cox have been met. I turn now to consider the s 399A Application.

1. Mr Dalton-Downward has failed to comply with the direction of the Commission to file a response to the s 399A Application. Consequently, there is no explanation before me for his non-attendance at either the 29 April or the 14 May 2025 conferences. In particular, I note that Mr Dalton-Downward’s non-attendance at the 14 May 2025 conference follows his advice to my Chambers that he would be in attendance on 14 May 2025 and would appear on his own behalf. Notwithstanding this advice, Mr Dalton-Downward has not answered any further telephone calls from the Commission or responded to any emails sent by my Chambers regarding his application. No bounce back emails have been received which provide any indication that the Commission’s correspondence has not reached him directly.  I must therefore conclude that Mr Dalton-Downward’s failure to attend either conference convened in relation to his application was unreasonable (s 399A(1)(a)).

1. Accordingly, I am empowered to exercise the discretion afforded under s 399A of the Act to dismiss Mr Dalton-Downward’s application for an unfair dismissal remedy. While such discretion is to be exercised with caution, I am satisfied that that it should be exercised in the following circumstances:

(a)Mr Dalton-Downward unreasonably failed to attend the 29 April and 14 May 2025 conferences convened by the Commission in relation to his application for an unfair dismissal remedy. On each occasion, the respondent, a small business, and its legal representative was in attendance;

(b)the Commission has afforded Mr Dalton-Downward the opportunity to respond to the
s 399A Application or otherwise explain his non-compliance or engage with the Commission about his unfair dismissal application;

(c)Mr Dalton-Downward has not demonstrated a willingness to prosecute his case in the Commission; and

(d)Mr Dalton-Downward has been on notice of the consequences of his non-compliance since 14 May 2025.

1. There are no matters which weigh against the exercise of my discretion.

Order and disposition

1. For the reasons given, the respondent’s application under s 399A is granted.

1. Mr Dalton-Downward’s application for an unfair dismissal remedy is dismissed pursuant to s 399A(1) of the Act.

DEPUTY PRESIDENT

Hearing details:

Matter determined on the papers.

[1] [2021] FWCFB 875 at [57]

[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31]

[3] Robin Hansen v Calvary Health Care Adelaide Limited[2016] FWCFB 5223 at [39]

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