Mr Jaidyn Chapple v Lifestyle Horticultural Services

[2024] FWC 1273

[2024] FWC 1273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Jaidyn Chapple
v

Lifestyle Horticultural Services

(U2024/916)

DEPUTY PRESIDENT CROSS SYDNEY, 16 MAY 2024

Application for an unfair dismissal remedy – verbal application made under section 399A – application granted – unfair dismissal application dismissed.

1. This decision, edited from transcript of the Hearing that occurred on 16 May 2024 concerns an application for an unfair dismissal and subsequent application made under section 399A.

1. I note that on 3 April 2024, directions for the finalisation of this application were issued from my chambers. Those directions included the notation as follows:

Any request for an extension of time for the filing of materials or for an adjournment of the arbitration hearing must be made as soon as practicable and must be based on substantial grounds. Non-compliance with directions will not otherwise be tolerated.

[Original emphasis]

1. At 2.38 pm on 15 May 2024, my chambers received correspondence from the Applicant's Mother, who I note has been, in essence, acting on behalf of the Applicant, indicating:

Unfortunately, Jaidyn and myself will not be able to attend tomorrow. I have been off work all week with a medical condition. I will also be attending the doctor again tomorrow and will forward a certificate. My sincerest apologies to all parties. I was hoping I'd be right for tomorrow.

1. I note that the Applicant's Mother indicated she had been off work with a medical condition, which begs the question why, in the last three days, that could not have been brought to the Commission's attention, and I note that it would have saved Mr Everitt, the Principal of the Respondent, from losing a day's work for himself and his only other employee. Unfortunately, that is what occurred.

1. At 8.16 pm on 15 May 2024, my Chambers responded to the Applicant's Mother's request stating:

The views of Deputy President Cross have been sought and he is not prepared to grant an adjournment on the ground sought. Please ensure the Applicant is in attendance for the hearing tomorrow. Should you wish to discontinue, please make that known as a matter of urgency

1. There has been no further response, notwithstanding some efforts by my chambers to contact the Applicant and his Mother, and I note that there has been a non-appearance today. The Respondent has previously sought compliance by the Applicant with the processes of the Commission, and that occurred on 27 March 2024, around the time of the directions hearing at which the directions were set. At that time, there was an application made by the Respondent that was apparently under section 399A of the Fair Work Act that I indicated I would deal with if there was any further non-compliance by the Applicant.

1. That application lapsed due to what occurred in the matter at that time, but it is seemingly reagitated by the Respondent today due to the non-attendance of the Applicant at his own hearing.

1. Section 399A provides that:

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.

1. Subsection (2) notes that the power is only exercisable upon application by the employer. Mr Everitt advised that he wished to apply for this at the Hearing.

1. I consider that there has been a quite unreasonable failure to attend this hearing. The parties have been fully aware that the hearing was scheduled for today. The Respondent has gone to some lengths in filing materials, and I note the Applicant has only filed materials in reply. Nonetheless, due to that failure to attend today, I see it as appropriate that the application be dismissed.

1. I say that particularly in circumstances where I understand that the Respondent is, without question, a small business and has attended promptly the Commission to date with every employee that it has, being Mr Healey. In those circumstances, as I have said, the Applicant’s unfair dismissal application will be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr  D Everitt on behalf of the Respondent.

Mr C Healey on behalf of the Respondent.

Hearing details:

16 May 2024.

Sydney.

In-person.

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