Mr Mark Jeffrey Bullen v Melba Support Services

[2022] FWC 717

[2022] FWC 717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Mark Jeffrey Bullen
v

Melba Support Services

(U2022/1723)

COMMISSIONER WILSON MELBOURNE, 31 MARCH 2022

Application for an unfair dismissal remedy

1. On 9 February 2022 Mr Mark Jeffrey Bullen made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Bullen’s employment had been terminated by Melba Support Services on a date which the Applicant was unable to definitively specify, but which he stated was either 7 January 2022 or 15 January 2022. 

1. It was determined that on the basis of either of these dates, the Application had been lodged out of time. Consequently, directions were issued and the matter was listed for hearing on the question of whether an extension of time would be granted.

1. Mr Bullen was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by 4.00 PM 3 March 2022.

1. Mr Bullen requested an extension to file his submissions. A further period of time was granted and Mr Bullen was required to file his material by 4.00 PM 10 March 2022.

1. Mr Bullen did not comply with this direction and the matter was listed for a non-compliance hearing before Commissioner Wilson on 16 March 2022.

1. At the time of the listing for the non-compliance hearing, three calls were made to Mr Bullen with messages left specifying his urgent attendance was required. However, Mr Bullen did not attend the non-compliance hearing. On that date Melba Support Services made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Bullen had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Rules 2009 and accepted Melba Support Services’ oral application.

1. On 16 March 2022, Mr Bullen was sent correspondence informing him of the Respondent’s s.399A application. Mr Bullen was directed to file submissions and other documentary material in respect of Melba Support Services’ application by 4.00PM 23 March 2022. Mr Bullen was advised that if he failed to comply with this direction, his application would be dismissed.

1. 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.

   ....
   (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. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

1. On 19 March 2023, three full days after the non-compliance hearing, the Applicant sent an email to the Commission stating his reasons for non-attendance at the non-compliance hearing, which included the unwellness of his mother. In that email Mr Bullen claimed he had no idea a hearing had even been scheduled for 19 March.  After receipt of this correspondence, the Respondent was given an opportunity to provide further submissions and Mr Bullen given a chance to rebut the matters relied upon by the Respondent.

1. Melba Support Services argued Mr Bullen had failed to serve any material directly on it despite being instructed to do so by the Fair Work Commission on several occasions and had been generally unresponsive to the Commission’s directions. Mr Bullen’s response to the Respondent’s submissions dealt briefly with his perception of unfairness at the hand of Melba Support Services but did not further address the matters that are the subject of the Respondent’s application to dismiss his unfair dismissal application.

1. Upon consideration of all relevant matters, I have determined that the reasons given for non-attendance were inadequate. I consider his claim to not have been aware of the listing of the non-compliance hearing to be implausible. Those considerations, taken with the other matters of non-compliance leaves me I satisfied that Mr Bullen has unreasonably failed to attend and unreasonably failed to comply with directions.

1. After considering all the material, Mr Bullen’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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