Mr Brock Mugridge v Wonson Frame and Trusses

[2018] FWC 2904

[2018] FWC 2904

FAIR WORK COMMISSION

DECISION

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

Mr Brock Mugridge
v
Wonson Frame and Trusses
(U2018/3071)

COMMISSIONER RIORDAN WOLLONGONG, 25 MAY 2018

Application for an unfair dismissal remedy.

[1] On 23 March 2018, Mr Brock Mugridge (the Applicant) lodged an application pursuant to section 394 of the Fair Work Act, 2009 (the Act), for an unfair dismissal remedy against Wonson Frames & Trusses Pty Ltd (the Respondent).

[2] The Applicant failed to participate in the conference convened by a Fair Work Commission (the Commission) Conciliator on 24 April 2018.

[3] On 2 May 2018, the Applicant emailed the FWC stating:

“I apologise for being unable to take your call but I was without my phone due to my phone being stolen. I would like to know what will the following actions that will take place?”

[4] The matter was then set down for Conference and Directions at the Wollongong Local Court on 10 May 2018 before the Commission as presently constituted.

[5] The Applicant again failed to participate with no prior warning.

[6] At the Conference the Respondent’s legal representative, Ms Janet Gilbert from the Timber Trade Industrial Association, advised that she intended to make an application in accordance with section 399A of the Act to have the application dismissed.

[7] Section 399A of the Act provides the following:

“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.”

[8] Ms Gilbert formally filed an application in accordance with section 399A electronically on 10 May 2018 both to the Commission and the Applicant.

[9] Following the Conference, my Associate sent the following correspondence to the Applicant on 11 May 2018:

“Dear Mr Mugridge,

I refer to the notice of listing that was issued on 7 May 2018 to notify that the above mentioned matter was set down for Conference and Directions before Commissioner Riordan on 10 May 2018 at 11am in the Wollongong Local Court.

I confirm that you failed to attend in accordance with the notice of listing.

On the basis that you also failed to participate in the earlier conciliation conference before the Conciliator, I attempted to contact you on Wednesday, 9 May 2018 leaving two voice messages and also sent an email as a reminder that your attendance is required. To date, I have not received a response.

Please be advised that you have seven days to provide a satisfactory explanation as to why you failed to attend. If you fail to provide any explanation the Commissioner will determine the matter based on the evidence currently before him.

Associate”

[10] To date, no correspondence has been received from the Applicant. The Applicant has been given ample opportunity to respond.

[11] Based on the Applicant’s non-attendance at the Directions conference and his failure to respond to any of the numerous attempts by the Commission to make contact with him, I have decided to dismiss the application under s.399A of the Act on the grounds that, due to his unreasonable actions, the Applicant has breached ss.399A(1)(a) and (b) of the Act.
[12] The application is dismissed.

[13] I so Order.

COMMISSIONER

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