Mr Joshua Keefe v Allwest Recruitment Pty Ltd

[2023] FWC 911

[2023] FWC 911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Joshua Keefe
v

Allwest Recruitment Pty Ltd

(U2022/11932)

DEPUTY PRESIDENT BINET PERTH, 20 APRIL 2023

Application for an unfair dismissal remedy

1. On 16 December 2022, Mr Joshua Keefe (Mr Keefe) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Allwest Recruitment Pty Ltd (Allwest Recruitment).

1. On 4 January 2023, Allwest Recruitment filed a Form F3 - Employer response to unfair dismissal application.

1. The Application was subsequently allocated to my Chambers for determination.

1. On 22 March 2023, the matter was listed for a Conciliation Conference where the matter was unable to be resolved.  At the Conference it was explained to the parties that directions for the determination of the Application would be issued (Directions) and that if Mr Keefe did not comply with the filing dates set out in the Directions the Application may be dismissed.

1. Directions were issued to parties on 30 March 2023 which required Mr Keefe to file his materials in relation to the merit of the Application by 4pm (AWST) Tuesday 11 April 2023. The Directions stated that compliance with the Directions was mandatory and a failure to comply may disadvantage the party concerned.

1. Mr Keefe failed to file any materials in accordance with the Directions.

1. On Thursday 13 April 2023, Chambers wrote to Mr Keefe and reminded him that his materials in relation to the merits of his application were overdue.

1. On the same day Allwest Recruitment made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Keefe failed to comply with the Directions (Dismissal Application).

1. Later the same day Mr Keefe was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Monday 17 April 2023. Chambers advised Mr Keefe that if he did not file submissions and evidence by 4pm (AWST) Monday 17 April 2023 the Application would be dismissed pursuant to section 399A of the FW Act.

1. No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Keefe by 4pm (AWST) Monday 17 April 2023, or since.

1. 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 other 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.”

1. Mr Keefe failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision Mr Keefe has still not filed any materials in support of the Application or in response to the Dismissal Application. Mr Keefe has not sought an extension to file his materials in support of the Application or in response to the Dismissal Application. I am satisfied that Mr Keefe has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Allwest Recruitment and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

1. An Order[1] will be issued with this Decision.

DEPUTY PRESIDENT

[1] Print PR761175.

Printed by authority of the Commonwealth Government Printer

<PR761174>