Mr Trent Taylor v Grunt N' Groan Pty Ltd T/A Jetts Fitness Ashmore

[2021] FWC 2140

[2021] FWC 2140

FAIR WORK COMMISSION

DECISION

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

Mr Trent Taylor
v
Grunt N' Groan Pty Ltd T/A Jetts Fitness Ashmore
(U2021/581)

COMMISSIONER SPENCER BRISBANE, 21 APRIL 2021

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

[1] Mr Trent Taylor (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act), alleging that the termination of his employment, by Grunt N’ Groan Pty Ltd T/A Jetts Fitness Ashmore (the Respondent/the employer) was harsh, unjust or unreasonable. The Respondent raised a jurisdictional objection pursuant to s.394(2)(a) of the Act, arguing that the Application was filed late on 22 January 2021, which was 26 days outside the 21-day statutory time limit.

[2] On 16 February 2021, the Applicant provided a response, via email, addressing the reasons for his delay in lodging his application.

LEGISLATION

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.

Note 1: for other 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.”

[3] A telephone conciliation conference was scheduled for 8 March 2021; however, this was later rescheduled, and parties were advised on 23 February, that the rescheduled conference would commence on 9 March 2021. The Applicant contacted chambers via email at 8:06am on the day of the scheduled conference and sought to postpone the conference. Parties were then advised that the conference had been delisted, and the conference would be rescheduled to occur on 24 March 2021. Parties were directed to confirm their attendance at the rescheduled conference.

[4] The Applicant had not confirmed his attendance, therefore two days prior to the scheduled conference, the Applicant was contacted on the mobile number he had provided. During this phone call, the Applicant confirmed his attendance and contact details for the scheduled telephone conference on the 24^th.

[5] On the day of the scheduled conference, the Commission attempted to contact the Applicant four times and sent a follow up email advising that he was required to urgently contact chambers. The Applicant subsequently called chambers and advised that he was ready to participate in the conference, approximately 25 minutes after the conference had commenced.

[6] The conference proceeded for approximately 5-10 minutes; at which time the Applicant ended the call on his own initiative. The Applicant was immediately dialled back into the conference call, at which time the Applicant declared that he was no longer proceeding with the conference and ended the call. The conference was then adjourned.

[7] Following the conference on the 24^th of March, the Respondent submitted a Form 1, later that day, making an application to have the application dismissed, pursuant to s.399A (1) of the Act. This application was served on the Applicant on 31 March 2021. The Respondent’s grounds for dismissing the application were that the Applicant had unreasonably failed to attend a conference held by the Commission.

[8] On 31 March 2021, Directions were emailed to the Applicant, providing him with an opportunity to file submissions and evidence as to why the application should not be dismissed pursuant to s.399A. The Applicant was provided until 12 April 2021 to provide a response. The Directions and dismissal application were also sent to the Applicant via registered post.

[9] No response or material were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by 12 April 2021, or by the date of this Decision.

[10] The process undertaken was commensurate with the process set out in the recent Full Bench decision of Iain Kenneth Lockyear v Graeme Cox, 1 that should be observed before the Commission can consider dismissing an application made under s.399A(1). The application was lodged by the Respondent, as a Form F1, and a copy was served on the Applicant. The Applicant was provided with an opportunity to respond to the application, and was invited to be heard on the matter if he sought such. The Applicant was also advised that failure to respond to the directions would result in the Employer’s application for dismissal being determined on the material, in the absence of a response from him, and that this could include the matter being dismissed.

CONCLUSION

[11] Mr Taylor failed to participate in the conference and failed to provide any response or file any material in response to the dismissal application. He did not seek an extension to file any material, and at the date of this decision, he had not responded to his application or the dismissal application.

[12] I am satisfied that the Applicant has unreasonably failed to comply with Directions of the Commission in relation to his s.394 application and the dismissal application. Pursuant to s.399A(1) of the Act, discretion is exercised to dismiss the s.394 application.

[13] I Order accordingly.

COMMISSIONER

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 1   [2021] FWCFB 875 at [57].