Mr Sonny Pettit v Japara T/A Noosa Residential Care

[2018] FWC 4825

[2018] FWC 4825

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Sonny Pettit
v
Japara T/A Noosa Residential Care
(U2018/4755)

DEPUTY PRESIDENT ASBURY BRISBANE, 16 AUGUST 2018

Application for an unfair dismissal remedy – Application under s.399A for the Commission to dismiss application for failure by Applicant to comply with a direction of the FWC relating to the application – Application granted – Unfair dismissal application dismissed.

[1] In a decision issued on transcript on 3 August 2018, I dismissed an application by Mr Sonny Pettit (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Japara T/A Noosa Residential Care (the Respondent). The application was filed in the Commission on 7 May 2018.

[2] The matter was listed for telephone conciliation on 5 June 2018 before a Fair Work Commission Conciliator, and was not resolved. In its Form F3 Employer Response Form the Respondent raised a jurisdictional objection to the application on the basis that the Applicant had resigned from his employment and had executed a deed of settlement in relation to his resignation. The matter was allocated to me on 6 June 2018.

[3] On 29 June 2018 I held a Mention/ Directionsconference, and issued directions requiring the parties to file material in relation to the Respondent’s jurisdictional objection. The directions required the Respondent to file its material by 4.00 pm Friday 13 July 2018, and for the Applicant to file his material by 4.00pm on Friday 27 July 2018. The Respondent filed its material in accordance with the directions.

[4] The Respondent sent correspondence to my Chambers at 2:58 pm on Monday 30 July 2018 advising it had not received any material from the Applicant, and asking whether the Applicant had applied for an extension or whether the Respondent was in a position to apply to have the application dismissed due to the Applicant’s failure to comply with the Directions.

[5] At 3:59 pm, I instructed my Associate to send correspondence to the Applicant informing him that he had failed to comply with the Directions, and had not sought an extension for his material to be filed. The correspondence also advised the Respondent that it was a matter for its consideration as to whether it would seek to have the matter dismissed pursuant to s.399A of the Actdue to the Applicant’s non-compliance with the directions.

[6] At 4.08 pm the Applicant responded to my Chambers asking how he could apply for an extension. I instructed my Associate to send correspondence to the Applicant at 4.18 pm explaining that a request for an extension could be made in writing to my Chambers, and referenced the requirement stated on the directions previously issued that material would only be accepted after expiry of a timeframe if a request for an extension was made and granted prior to the time the material was due. The correspondence also stated that if an application was received by the Respondent to have the Applicant’s unfair dismissal application dismissed, a response would be required from the Applicant as to why his application should not be dismissed, in which he would also be required to explain his non-compliance with directions of the Commission.

[7] The Respondent made its application by email to have the Applicant’s unfair dismissal application dismissed under s. 399A of the Act on Tuesday 31 July 2018 at 3.35 pm, which was copied to the Applicant. Correspondence was then received from the Applicant at 8.21 am on Wednesday 1 August 2018 requesting an extension to file his material.

[8] At 12.30 pm Wednesday 1 August 2018 I issued directions requiring the Applicant to provide a response to the s. 399A application including why his application should not be dismissed, and provide any evidence in support of his request for an extension by 4.00 pm Thursday 2 August 2018. A hearing was listed at 10.00am Friday 3 August 2018 to determine the Respondent’s s. 399A application. The hearing was subsequently amended to commence at 11.30 am. The notice of listing requested both parties confirm a telephone contact number to facilitate their attendance at the hearing by close of business Thursday 2 August 2018.

[9] The Applicant did not respond to the directions, or the notice of listing for the hearing. At the commencement of the hearing, my Associate attempted three times to contact the Applicant on the mobile telephone number provided on his application. The Applicant was unable to be contacted to attend the hearing. Ms Jennifer Anderson, Industrial Relations Manager appeared on behalf of the Respondent. The Hearing proceeded in the absence of the Applicant.

Legislation

[10] 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

[11] I am satisfied that the Applicant has failed to comply with directions of the Commission relating to his application and failed to attend a hearing conducted by the Commission. The Applicant has provided no reasonable explanation for his failure to comply with directions of the Commission, or his failure to attend the hearing of 3 August 2018.

[12] The Applicant has also failed to respond to correspondence of the Commission regarding his failure to comply with the directions.

[13] 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.

[14] The Respondent’s application under s. 399A(1)(b) is granted. The application in U2018/4755 is dismissed and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Ms J Anderson on behalf of the Respondent.

Hearing details:

Brisbane.

3 August.

2018.

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