Mr Christopher Ryan v Woodman McDonald Glass Pty Ltd
[2024] FWC 2950
•28 OCTOBER 2024
| [2024] FWC 2950 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Christopher Ryan
v
Woodman McDonald Glass Pty Ltd
(U2024/10296)
| COMMISSIONER JOHNS | MELBOURNE, 28 OCTOBER 2024 |
Application for an unfair dismissal remedy
This decision concerns an application made under s.399A of the Fair Work Act 2009 (Cth) (FW Act) by the Woodman McDonald Glass Pty Ltd (the Former Employer) to dismiss an unfair dismissal application brought against it by Mr Christopher Ryan (Mr Ryan).
For the reasons that follow, the Former Employer’s application under s.399A is granted and Mr Ryan’s application for an unfair dismissal remedy is dismissed.
Procedural History
On 4 September 2024, Mr Ryan filed his unfair dismissal application.
On 25 September 2024, the Former Employer lodged its response form, raising a jurisdictional objection that the application was lodged out of time.
On 3 October 2024, the application was allocated to my Chambers. On 9 October 2024, I scheduled a jurisdictional objection hearing for 17 October 2024 to determine whether to grant Mr Ryan an extension of time to file his application. The notice of listing and directions were sent to the nominated email addresses of both the Former Employer and Mr Ryan. Importantly, the notice of listing stated that the hearing would commence at 10 am (Melbourne time), with this detail in bold and highlighted in yellow.
On 17 October 2024, the Former Employer attended the hearing, but Mr Ryan did not, despite attempts by my Associate to contact him via telephone. The Former Employer orally requested the dismissal of the application pursuant to s.399A of the FW Act. I waived compliance with the Fair Work Commission Rules 2024 and accepted the Former Employer’s oral request as an effective s.399A application. On the same day, an email with an attached letter was sent to the nominated email addresses of both parties, notifying Mr Ryan of the s.399A application and giving him until 4 PM (Melbourne time) on 24 October 2024 to provide his reasons for non-attendance. The letter explicitly stated that if no material was filed by the deadline or if the explanation was not reasonable, his unfair dismissal application would be dismissed. This was reiterated in the body of the email.
On 22 October 2024, the Applicant sent the following email to my Chambers:
“Good afternoon,
I did attend the meeting, at 10am QLD time!
Apologies for not taking note of daylight savings., please reschedule!”
Legislative Framework
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 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.’
The Explanatory Memorandum to the Fair Work Act Amendment Bill 2012 (Cth) in respect of s.399A provided as follows:
‘161. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:
·failed to attend an FWC conference or hearing relating to the application
·failed to comply with an FWC direction or order relating to the application, or
·failed to discontinue the application after a settlement agreement has been concluded.
162. The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.
163. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:
·an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or
·an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.
164. Note 2 to new subsection 399A(1) draws the reader’s attention to the FWC’s capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant’s failure caused the other party to the matter to incur costs.
165. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.
166. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC’s general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC’s power to dismiss an unfair dismissal application under new section 399A.
167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part.’
Consideration
The Full Bench of the Commission in Ian Kenneth Lockyear v Graeme Cox (Lockyear) relevantly provided as follows in relation to the operation of s.399A of the FW Act:[1]
‘[30] We observe at the outset that the power to dismiss an application is to be exercised cautiously. As the Full Bench observed in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station:
‘The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly; a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard.’
…
[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. 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.’
As set out in the procedural history section of my decision, the first three steps have been satisfied. Given that Mr Ryan did not file any material, steps four and five were not enlivened. I must now determine the s.399A application before me.
Mr Ryan explained his non-attendance at the jurisdictional objection hearing by stating that he did attend, but at Queensland time. In his email sent on 22 October 2024, he mentioned that he failed to account for daylight savings and requested my Chambers to reschedule the hearing. Given that the notice of listing clearly indicated the hearing was scheduled for Melbourne time, with this detail highlighted in yellow and bold, and considering my Associate’s attempts to contact Mr Ryan by phone when he did not attend, I do not find his explanation for non-attendance reasonable.
Conclusion
The Former Employer’s s.399A application is granted.
Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses Mr Ryan’s application for an unfair dismissal remedy on the basis that he has unreasonably failed attend a listing held by the Commission.
An order giving effect to this decision will be issued simultaneously with this decision [PR780547].
COMMISSIONER
[1] [2021] FWCFB 875, [30] & [57] – [58].
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