Mr Wesley Foster v Lester Foster T/A Foster's Postforming and Furniture Manufacturing

[2016] FWC 4565

[2016] FWC 4565

FAIR WORK COMMISSION

DECISION

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

Mr Wesley Foster
v
Lester Foster T/A Foster's Postforming and Furniture Manufacturing
(U2016/5632)

DEPUTY PRESIDENT BINET PERTH, 8 JULY 2016

Application for relief from unfair dismissal - failure of applicant to attend conference – failure of applicant to provide submissions - whether discretion should be exercised to dismiss substantive application.

[1] On 23 March 2016 Mr Wesley Foster (Mr Foster) lodged an application pursuant to section 394 of the Fair Work Act 2009 (FW Act)in which he asserted that the termination of his employment by Lester Foster T/A Foster’s Postforming and Furniture Manufacturing (Foster’s Postforming) was unfair (Application).

[2] On the same date, Mr Foster’s spouse, Ms Kylie Foster (Ms Foster), also lodged an application pursuant to section 394 of the Fair Work Act 2009 (FW Act) in which she asserted that the termination of her employment by Foster’s Postforming was unfair (Matter U2016/5633).

[3] Both matters involve related factual circumstances so both applications were listed for a joint conciliation conference on Monday 20 June 2016 (Conference).

[4] The owner of Foster’s Postforming is Mr Foster’s father, Mr Lester Foster.

[5] Prior to the Conference, on Sunday 19 June 2016, Ms Foster emailed the Fair Work Commission (FWC) advising that she no longer wished to proceed with her matter due to family problems. She advised that she would not be attending the Conference listed for the following morning. Ms Foster followed this email with a further email to the FWC confirming she could not attend the Conference due to a restraining order against her spouse, Mr Foster, and would not be taking this matter any further. Ms Foster’s unfair dismissal application was subsequently discontinued by the FWC.

[6] On 20 June 2016, Mr Lester Foster, owner and director of Foster’s Postforming, attended the Conference with his agent, Mr Stephen Farrell from the Chamber of Commerce & Industry Western Australia. Mr Foster did not appear at this conference and could not be contacted after several attempts by my associate.

[7] At the Conference and by subsequent email to the parties dated 20 June 2016, I advised the parties that, given Mr Foster’s non-attendance at the Conference, Foster’s Postforming was invited to provide written submissions to my Chambers pursuant to section 399A of the FW Act for the Application to be dismissed.

[8] Mr Foster was invited to provide written submissions in response to Foster’s Postforming’s section 399A application by close of business, Thursday 30 June 2016. The parties were notified that the matter would be determined on the written submissions of both parties.

[9] Foster’s Postforming filed and served its section 399A application on 24 June 2016. No submissions in reply were received from Mr Foster on or before close of business, Thursday 30 June 2016.

[10] My associate attempted to contact Mr Foster on 20 June 2016, 23 June 2016 and 7 July 2016 but to no avail.

[11] Section 399A states:

“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.”

[12] Mr Foster failed to attend or participate in the Conference, file any submissions in response to Foster’s Postforming’s submissions or lodge a Notice of Discontinuance. Mr Foster’s unfair dismissal application has been dismissed accordingly. An Order [PR582550] to this effect will be issued.

DEPUTY PRESIDENT

Appearances:

L Foster on behalf of Lester Foster T/A Foster’s Postforming and Furniture Manufacturing and S Farrell of the Chamber of Commerce and Industry Western Australia.

Hearing/conference details:

2016.

Perth:

June 20.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR582549>