Mr Kye Andrew Payne v Choices Flooring

[2022] FWC 3276

[2022] FWC 3276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Kye Andrew Payne
v

Choices Flooring

(U2022/9320)

COMMISSIONER JOHNS MELBOURNE, 13 DECEMBER 2022

Application for an unfair dismissal remedy - Section 399A - Dismissing Applications - Failure to attend hearing held by the Commission - Failure to comply with a direction of the Commission.

1. On 17 September 2022, Kye Andrew Payne (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Application was made in respect of his employment at Choices Flooring (the Respondent).

1. The Applicant commenced working for the Respondent in January 2022. On 16 September 2022, the Respondent notified the Applicant of their intention to dismiss the Applicant. The dismissal took effect on that same day.

1. On 6 October 2022, the Respondent lodged a Form F3 response to the Applicant’s application.

1. On 31 October 2022, a conciliation was scheduled before a conciliator of the Fair Work Commission (Commission), however, the Applicant did not attend.

1. On 3 November 2022, the matter was allocated to me by Commissioner Bissett. On 4 November 2022, I sent the parties a notice of listing, listing the matter for a mention/directions hearing at 2:30pm (AEDT) on Friday, 9 November 2022.

1. At the hearing, both the Applicant and the Respondent failed to attend. At the commencement of the hearing, my Associate called the Applicant three times and left a voice message advising him that the hearing had commenced at 2:30pm.

1. I listed the matter for a further mention/directions hearing at 3:00pm (AEDT) on 22 November 2022) to afford the Applicant with a further opportunity to attend.

1. At the further mention/directions hearing the Applicant again failed to attend. At the commencement of the hearing, my Associate called the Applicant three times and left a voice message advising him that the hearing had commenced at 3:00pm.

2. Despite the Applicant’s absence, the hearing proceeded with the Respondent. At the hearing, the Respondent made an oral s.399A application on transcript to have the Applicant’s s.394 application for an unfair dismissal remedy dismissed.

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 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.”

1. To afford the Applicant with an opportunity to respond to the Respondent’s application to dismiss, I sent the Applicant a letter via email to the email address nominated on his Form F2 Application on 22 November 2022. The letter directed the Applicant to explain his failure to attend the mention/direction hearing by no later than 5:00pm on 30 November 2022.

1. To date, neither my Chambers nor the Commission Registry has received any response from the Applicant.

1. Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s application for an unfair dismissal remedy on the bases that the Applicant has unreasonably failed to attend a hearing held by the Commission, and further, unreasonably failed to comply with a direction of the Commission.

1. An order giving effect to this decision will be issued simultaneously with this decision

COMMISSIONER

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