Mr Robert Philpott v Dutt Transport Pty Ltd

[2023] FWC 647

[2023] FWC 647

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Robert Philpott
v

Dutt Transport Pty Ltd

(U2022/11732)

COMMISSIONER LEE MELBOURNE, 17 MARCH 2023

Application for an unfair dismissal remedy – application dismissed.

1. On 11 December 2022, Mr Robert Philpott (the Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was dismissed from his employment with Dutt Transport Pty Ltd (the Respondent) on 8 December 2022.

1. On 18 January 2023, my Chambers sent an email to parties providing the Notice of Listing and Directions. The email provided that a Mention/Conference would be conducted via Microsoft Teams at 10:00am AEDT on Tuesday, 7 February 2023.

1. On Tuesday, 7 February 2023, the day of the Mention/Conference, my Chambers sent an email to parties at 9.23am following up on appearances. At 10.14 am Michael Sheppard, the General Manager, Operations at Dutt Transport Pty Ltd sent an email to my Chambers indicating “I believe this has been settled”. At 10.17am my Chambers sent a further email to parties asking they urgently contact my Chambers or join the Mention/Conference via the link provided in the Notice of Listing. At 10.23am the Respondents Representative, John Douglas, Barrister & Solicitor at Maddison Associates sent an email to my Chambers indicating this was the first time he had seen the Notice of Listing. Mr Douglas sent a further email to my Chambers at 10.25am indicating “this matter has settled and the applicant was required to file a notice of discontinuance.”

1. The Applicant did not attend the Mention/Conference on 7 February 2023 which went ahead. Considering the correspondence between my Chambers, the Respondent and Respondents Representative, it appeared a settlement had been reached between the Respondent and the Applicant. The Respondent indicated that in the settlement, the Applicant agreed to file a Notice of Discontinuance. I advised the Respondent that the difficulty was that the application was still on foot as I had not heard anything from the Applicant or from the Respondents Representative, Mr Douglas. Therefore, the matter remained listed on the assumption that the matter was proceeding.

1. The Respondent, at the Mention/Conference made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant failed to attend the Mention/Conference conducted by the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

1. Later that day, My Chambers sent the Applicant an email containing the letter informing him of the s.399A application. The Applicant was directed to file with the Commission, and serve on the Respondent, submissions providing reasons as to why the Commission should not dismiss his application, including evidence or other documentary material to support. The material was required by no later than 4:00pm on Friday, 10 February 2023. The letter indicated that if the Applicant did not provide a reason by 4:00pm on Friday, 10 February 2023, I proposed to dismiss the application without further notice.

1. On 7 February 2023 the Applicant called my Chambers and spoke to my Associate. The Applicant indicated he received correspondence regarding the Mention/Conference held that morning and wanted to know what the next steps were. My Associate advised him on what occurred at the Mention/Conference and requested a Form F50 Notice of Discontinuance be lodged if the Applicant wished to discontinue the matter pursuant to reaching a settlement agreement.

1. To date, the Applicant has not filed any material, or otherwise contact the Commission. 

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.

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. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss pursuant to s.399A of the Act, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant failed to attend a Mention/Conference conducted by the Commission, and has failed to comply with directions of the Commission. For these reasons, I have determined to exercise my discretion under s.399A(1)(a) of the Act and dismiss the Applicant’s application.

1. The Applicant’s application for remedy from unfair dismissal is dismissed. An order[1] will be issued concurrently with this decision.

COMMISSIONER

[1] PR760390

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