Mr Louis Gutteridge v Total Support Services
[2023] FWC 884
•14 APRIL 2023
| [2023] FWC 884 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Louis Gutteridge
v
Total Support Services
(U2023/1135)
| COMMISSIONER PLATT | ADELAIDE, 14 APRIL 2023 |
Application for an unfair dismissal remedy – application to dismiss under s.399A – whether Applicant unreasonably failed to comply with Commission direction and attendance – application dismissed.
On 13 February 2023, Mr Louis Gutteridge (the Applicant) lodged an application for unfair dismissal remedy, pursuant to s.394 of the Fair Work Act 2009 (the Act) against Total Support Services (the Respondent).
The matter was listed for conciliation on 14 March 2023; however, the Applicant did not respond to communications to attend the conciliation. Accordingly, the matter was allocated to my Chambers for determination.
A Directions Conference was listed for 30 March 2023. Despite multiple attempts by my Associate to contact the Applicant, the Applicant failed to attend the Directions Conference. I conducted the Directions Conference in the Applicant’s absence. The Applicant was advised that a failure to comply with the Direction may lead to the matter being dismissed.
The Applicant was required to file his material by 6 April 2023, but failed to do so. No communication was received from the Applicant.
On 11 April 2023, the Respondent filed a s.399A application seeking that I dismiss the matter as a result of the Applicant’s failure to attend and/or comply with Directions.
On 12 April 2023, I requested the Applicant to provide an outline of his position as to the s.399A application and listed the matter for Hearing on 14 April 2023.
The Applicant did not file any material with respect to the s.399A application.
Legislation
Section 399A of the Act provides as follows:
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 relation 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.
Consideration
The Commission has the discretion to dismiss an unfair dismissal application under s.399A of the Act on application by an employer, in circumstances where there has been an unreasonable failure to attend a conference or a hearing held by the Commission in relation to the application, or unreasonable non-compliance with directions of the Commission.
Whilst these was no compulsion for the Applicant to participate in Conciliation, I note that he did not respond to communications concerning that conference.
The Applicant failed to attend the Directions Conference on 30 March 2023, failed to file his material in compliance with my Directions issued on that date, and failed to respond to my Directions to file an outline of his position with respect to the s.399A application.
Accordingly, I am satisfied that ss.399A(1)(a) and 399A(1)(b) are enlivened. It appears to me that the Applicant has failed to prosecute his case, and in those circumstances, it is an appropriate exercise of my discretion under s.399A of the Act to dismiss the unfair dismissal application. An Order reflecting this decision will be issued simultaneously. [1]
COMMISSIONER
Appearances:
No appearance from the Applicant.
Mr A Clare for the Respondent.
Hearing details:
2023.
Adelaide (by teleconference):
April 14.
[1] PR761097.
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