Mr Kyle Muldoon v Deluxe Investments Pty Ltd T/A Parlour Coffee

[2018] FWC 5717

[2018] FWC 5717

FAIR WORK COMMISSION

DECISION

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

Mr Kyle Muldoon
v
Deluxe Investments Pty Ltd T/A Parlour Coffee
(U2018/7505)

DEPUTY PRESIDENT ASBURY BRISBANE, 11 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] Mr Kyle Muldoon (the Applicant) applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Deluxe Investments Pty Ltd T/A Parlour Coffee (the Respondent). The application was filed in the Fair Work Commission (the Commission) on 21 July 2018.

[2] The Applicant also filed a related dispute under s. 739 of the Act which was allocated to me on 31 July 2018. When the Applicant’s s. 739 application was allocated to me, I proposed to deal with both applications at a conciliation conference. Both applications were listed for a conciliation conference by telephone at 3.00pm on 22 August 2018, which was detailed in correspondence sent on 10 August 2018 to the email address nominated on the Applicant’s application. A notice of listing was also issued to the parties on that day.

[3] The Applicant did not attend the conciliation on 22 August 2018, and attempts to contact him on the mobile telephone number provided on his application were unsuccessful.

[4] The Respondent subsequently made an application under s. 399A of the Act to have the Applicant’s unfair dismissal application dismissed for failing to attend a conference conducted by the Commission. On 22 August 2018 I instructed my Associate to send correspondence to the Applicant attaching the s. 399A application, and directing the Applicant to respond to the application and provide reasons by close of business on 28 August 2018 as to why he failed to attend the conference and why his application should not be dismissed. A telephone hearing was listed for 9.00 am on 29 August 2018 to determine the s. 399A application. The Applicant was warned that if he failed to respond to the application or appear at the hearing, his application would be dismissed without further notice.

[5] Correspondence was received from the Applicant at 6.31 pm on 28 August 2018. The correspondence stated that the Applicant had not received any correspondence from the Commission due to an error with his email filtering system, and had only become aware of the conference upon listening to a voicemail message left by my Associate for the Applicant at the time of the conference.
[6] At the hearing, the Applicant spoke to his reason for failing to attend the conference. The Applicant did not provide evidence of the error with his email filtering system that he asserts occurred. At the conclusion of the hearing, I did not determine the s. 399A application, and issued directions to the Applicant requiring him to file his material in support of his unfair dismissal application by close of business Monday 3 September 2018. The Applicant was put on notice that if he failed to comply with the directions, his unfair dismissal application would be dismissed without further notice.

[7] Following the hearing I instructed my Associate to issue formal written directions which amongst other things, required the Applicant to file his material by 4.00 pm on Wednesday 5 September 2018. These directions were issued to the parties at 11.09 am on Wednesday 29 August 2018. My Associate requested the Applicant confirm receipt of the directions.

[8] The Applicant did not respond to the directions, and has not filed any material in accordance with the directions. The Applicant has not corresponded with my chambers to request an extension of time in which to file his material, or to offer any explanation as to why his material was not filed in accordance with the directions.

Legislation

[9] Section 399A of the Act provides as follows:

“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.”

Conclusions

[10] I am satisfied that the Applicant has failed to comply with directions of the Commission relating to his application. The Applicant has provided no reasonable explanation for his failure to comply with directions of the Commission, and the Applicant was put on notice at the hearing of 29 August 2018 that failing to comply with the directions would result in his application being dismissed.

[11] I am satisfied that the conduct of the Applicant in this matter triggers the discretion in s. 399A of the Act to dismiss his application and that the discretion to dismiss the application should be exercised.

[12] The Respondent’s application under s. 399A(1)(a) is granted. The application in U2018/7505 is dismissed and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

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