Mr Stephen Sandberg v Platinum Property Styling Pty Limited

[2024] FWC 1176

[2024] FWC 1176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Stephen Sandberg
v

Platinum Property Styling Pty Limited

(U2024/2750)

COMMISSIONER PLATT ADELAIDE, 10 MAY 2024

Application for an unfair dismissal remedy – s.399A application – application dismissed.

1. On 8 March 2024, Mr Stephen Sandberg lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with Platinum Property Styling Pty Limited (the Respondent).

1. The matter was listed for a staff conciliation on 15 April 2024 but did not proceed due to the Applicant not attending. The Applicant emailed the Commission on 16 April 2024 providing a reason for the non-attendance:

“Hi there, sorry I had to work yesterday, as I need money and don't get paid if I don't work”.

1. The matter was allocated to my Chambers on 17 April 2024.

1. On 24 April 2024, my Chambers issued a Notice of Listing with a date for arbitration and a timeline for the filing of submissions. Paragraph [12] of the Directions notified the parties a Member Assisted Conciliation Conference would be held by Deputy President Anderson and that the parties would be formally advised of arrangements shortly thereafter.

1. The Applicant did not attend that conference and the Respondent then filed a s.399A application seeking that I dismiss the substantive s.394 application.

LEGISLATION

1. Section 399A of the Act is 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 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. The Respondent’s case is summarised in the Form F1 filed on Monday, 6 May 2024. The Respondent complains that the Applicant:

·  Failed to attend a conciliation conference convened by a FWC staff member on 15 April 2024.

·  Failed to attend a conciliation conference convened by Deputy President Anderson on 3 May 2024.

·  Failed to submit a response to the s.399A application as directed by myself.

·  Failed to attend a conference conducted by myself on 7 May 2024.

1. The Respondent has drawn my attention to the principles contained in paragraph [24] in the Decision of Deputy President Clancy in Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting.[1]  I adopt those principles.

1. In addition to the above, and despite being warned by my Chambers that a failure to comply would most likely be fatal to his application, the Applicant has not submitted his material for the substantive s.394 application by 4.00pm (SA) Thursday, 9 May 2024 as required by my Directions issued on 24 April 2024, nor has any explanation been given.

1. My Associate has sought to engage with the Applicant on numerous occasions by telephone and/or email. The Applicant has not responded, nor has any reasonable excuse been proffered for the Applicant’s failure to engage.

1. I do not accept that the failure of the Applicant to attend a conciliation conducted by a staff member of the FWC (as opposed to a Member of the Commission) is a breach of s.399A(1)(a). In addition, the failure of the Applicant to respond to the Respondent’s s.399A application whilst foolish, is not a basis upon which I believe would be appropriate to dismiss his application.

1. However, the failure to attend the conference conducted by Deputy President Anderson on 3 May 2024, the conference convened by myself on 7 May 2024 and the Applicant’s failure to comply with the Directions by not submitting the material required, provide a solid foundation for the exercise of my s.399A powers.

1. It is apparent to me that the Applicant has failed to engage and/or prosecute his case since its lodgement. The Applicant has been repeatedly warned that his failure to engage could result in the dismissal of his application.  In my view, the circumstances above justify the dismissal of the application in accordance with s.399A, and I so order.

COMMISSIONER

[1] [2018] FWC 1583

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