Mr Robert De Murtas v Sidekicker Lend Me a Hand Pty Ltd
[2022] FWC 3286
•22 DECEMBER 2022
| [2022] FWC 3286 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Robert De Murtas
v
Sidekicker - Lend Me A Hand Pty Ltd
(U2022/10639)
| COMMISSIONER CIRKOVIC | MELBOURNE, 22 DECEMBER 2022 |
Application for an unfair dismissal remedy – s.399A application to dismiss – application granted
On 4 November 2022, Mr Robert De Murtas (the Applicant) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with Sidekicker – Lend Me a Hand Pty Ltd (the Respondent). In his Form F2, the Applicant provided a mobile number and an email address, both of which have been used by the Commission throughout the conduct of this matter.
On 29 November 2022, the file was allocated to my chambers. On that day, I listed this matter for a Case Management Conference (CMC) at 12:30PM AEDT on 5 December 2022, using Microsoft Teams. A Notice of Listing confirming the date and time of the CMC was sent to the Applicant by his nominated email address.
On 5 December 2022, my Chambers attempted to contact the Applicant on his nominated mobile number at 12:30PM to conduct the CMC. The Applicant answered his phone but stated that he had not received a Notice of Listing, that he was unaware that the CMC had been listed that day, and that he was currently attending a doctor’s appointment. The Applicant requested that the CMC be adjourned to 1:30PM on the same day. After confirming the Respondent’s consent to the request, I adjourned the CMC to 1:30PM.
At 1:30PM on the same day, my Chambers again contacted the Applicant on his mobile number to conduct the CMC. The Applicant joined the call when dialled by my Associate initially but left the call before I entered personally. Two further calls were made to the Applicant on his mobile number but went unanswered, and voice messages were left requesting the Applicant join the CMC. The CMC then proceeded without the Applicant.
At the CMC, the Respondent advised verbally that it would file a s.399A application to dismiss the matter. Later that day, the Respondent sent an email to Chambers which I have set out below:
“Dear Commissioner,
Following the non-attendance of the Applicant at the Case Management Conference today, the Respondent (Lend Me A Hand Pty Ltd, trading as Sidekicker) would like to make an application unde(sic) s399A Fair Work Act for an order to dismiss the case due to the unreasonable failure of the Applicant to attend a conference conducted by FWC.”
At approximately 2:36PM on 5 December 2022, my Chambers forwarded a non-compliance letter to the Applicant regarding his failure to attend the CMC. Relevantly, the letter forwarded the email from the Respondent described at paragraph [5] above and stated:
A Case Management Conference was listed before me in this matter at 12:30PM on 5 December 2022;
A Notice of Listing confirming the date and time of the CMC was sent to the Applicant’s nominated email address as provided on his Form F2;
The Applicant was required to attend the CMC at 12:30PM. However, following the communications with Chambers described in paragraphs [3] – [4] above, the Applicant did not join the CMC and it proceeded in his absence;
The Applicant was regarded as having failed to attend the conference;
The Respondent had made an application pursuant to s.399A of the Act to dismiss his application;
His urgent response to his apparent failure to attend the conference was required; and
If no response was received by 5:00PM Friday 9 December 2022, his application may be listed for a non-compliance hearing and subsequently dismissed.
At approximately 3:20PM on the same day, my Chambers attempted to contact the Applicant via telephone to advise him that a non-compliance letter had been issued. The call went unanswered, and a voice message was left directing the Applicant’s attention to the following extract of the non-compliance letter:
“Your urgent response to your apparent failure to attend the conference is required. If we do not receive any response from you by 5:00PM Friday 9 December 2022, the application may be listed for a non-compliance hearing and subsequently dismissed.”
At approximately 5:36PM on the same day, my Chambers re-sent the contents of the non-compliance letter as an email to the Applicant.
No response to the email or voice message was received by Chambers by 9 December 2022. On 12 December 2022, my Chambers again attempted to contact the Applicant via telephone. The call went unanswered, and a voice message was left advising that the matter would be listed for non-compliance hearing at 10:00AM on Wednesday 21 December 2022. A Notice of Listing confirming the time and date of the non-compliance hearing was sent to the Applicant’s nominated email address that afternoon.
On 15 December 2022, my Chambers made a further attempt to contact the Applicant via his mobile phone. The call was answered, however the Applicant immediately ended the call after my Associate advised they were calling from my Chambers at the Fair Work Commission.
The Applicant did not attend the non-compliance hearing on 21 December 2022. My Chambers made multiple attempts to contact the Applicant via mobile phone, which went unanswered. Voice messages were left advising that the Applicant was required to attend and that a failure to attend would result in his application being dismissed.
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.
…
(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.”
In Lockyear v Graeme Cox [2021] FWCFB 875 at [57] the Full Bench found:
“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”
I have applied the reasoning of the Full Bench in coming to my decision.
Section 399A(2) is satisfied by the Respondent’s application of 5 December 2022. While the application was not filed using a Form F1, I consider it appropriate to waive compliance with the rules and accept the application pursuant to s.586(1) of the Act. Similarly, s.399A(1)(a) is satisfied by the Applicant’s failures to attend the CMC on 5 December 2022 and the non-compliance hearing on 21 December 2022. The jurisdictional pre-requisites are met for the Applicant’s application to be dismissed and it is a matter of discretion whether I do so.
The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to law before they have had their “day in court.”[1]
The Applicant was served with a copy of the s.399A application on 5 December 2022 and given until 5:00PM 9 December 2022 to respond. The non-compliance letter sent to the Applicant on 5 December 2022 clearly stated that if no response was received, “the application may be listed for a non-compliance hearing and subsequently dismissed.” The Applicant was then afforded a further opportunity to respond by attending the non-compliance hearing on 21 December 2022.
I am satisfied that the Applicant has acted unreasonably in failing to attend the CMC on 5 December 2022 and the non-compliance hearing on 21 December 2022. He was advised of both in advance via the contact details he has provided and has made no response to the repeated Commission attempts to contact him. Further, I consider the Applicant has unreasonably failed to comply with my direction to respond to the s.399A application.
The Respondent is entitled to ask for finality. The Applicant has not taken up the opportunity to prosecute his case. In the circumstances, I see no utility in allowing the Applicant’s claim to continue, and I therefore grant the Respondent’s application under s.399A.
The Applicant’s application is therefore dismissed.
COMMISSIONER
Appearances:
No appearance for the Applicant
Ms S Chai for the Respondent
Hearing details:
21 December 2022, via Microsoft Teams
[1] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].
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