DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Reece Rowe
v
Horizon Manufacturing Pty Ltd
(U2021/5686)

DEPUTY PRESIDENT LAKE

BRISBANE, 25 AUGUST 2021

Applicant for an unfair dismissal remedy – application dismissed after applicant failed to attend and comply with directions

[1] This decision concerns an application made by Mr Reece Rowe (theApplicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (theAct) arising out of the termination of his employment with Horizon Manufacturing Pty Ltd (theRespondent).

[2] The Applicant lodged their Form F2 Unfair Dismissal Application on 29 June 2021. A Form F3 Employer Response was filed by the Respondent on 6 July 2021. The matter was allocated to my Chambers for hearing and determination.

[3] On 5 August 2021, my Chambers issued a notice of listing, accompanied by several directions. That notice of listing indicated at the conference for the matter would take place at 2pm on 5 August 2021. At the prescribed time, my Associate called Applicant three time on his mobile and left two messages. Meanwhile, the Respondent was able to contacted. By 3:27pm that afternoon, no response having been received from the Applicant, the following email was sent:

“Dear parties,

Reference is made to the above matter and the conference as listed before Deputy President Lake at Brisbane this afternoon at 2pm. The notice of listing for this in person conference was issued on 5 August 2021, including to the Applicant’s email address at [redacted].

The Applicant was called three times on his mobile and two messages were left, however at the time of sending this email no response has been received. The Respondent was contacted by the Commission for this conference and was available.

In light of the Applicant’s failure to attend the conference this afternoon, without notice of his inability to attend or any contact seeking an adjournment, the Deputy President must now turn his mind to whether the application should be dismissed for any failure of the Applicant to prosecute the matter.

Directions to the Applicant

The Applicant is directed to provide a written explanation as to the circumstances around his failure to attend at today’s conference, and submissions as to why the matter should not be dismissed in writing to Chambers and copied to the Respondent, by Monday, 16 August 2021.

Directions to the Respondent

The Respondent is invited to provide any response to the Applicant’s request for the matter to proceed by hearing, in writing to Chambers and copied to the Applicant, by Thursday, 19 August 2021.

The Deputy President will then determine the matter of whether the application should be dismissed, or proceed to hearing as listed.

If the Applicant fails to file these submissions as directed, the application may be dismissed and it will be a matter for the Respondent whether it seeks an order for costs against the Applicant.”

[4] At the time of writing this decision, no correspondence or communication has been received from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 5270
Decision Date: 25 AUGUST 2021

CaseChat Overview and Summary

The case of Reece Rowe v Horizon Manufacturing Pty Ltd involved a dispute over an unfair dismissal claim by the applicant, Reece Rowe, against his former employer, Horizon Manufacturing Pty Ltd. The matter was heard in the Fair Work Commission. Reece Rowe sought a remedy for unfair dismissal, claiming that he was dismissed without just cause or reason. Horizon Manufacturing Pty Ltd, on the other hand, argued that the dismissal was justified and that the applicant had not followed necessary procedures.

The central legal issues before the court were whether the dismissal was indeed unfair, and whether the applicant had complied with the procedural requirements of the Fair Work Act 2009. The court needed to determine if the dismissal met the criteria for unfair dismissal as outlined in the Act and whether the applicant's procedural compliance was sufficient. The court also needed to consider the applicant's failure to attend the proceedings and comply with the directions issued.

In its decision, the Fair Work Commission noted that the applicant had not attended the hearing and had failed to comply with several procedural directions. The Commission found that the dismissal was justified and that the applicant had not demonstrated that the dismissal was harsh, unjust, or unreasonable. Given the applicant's non-compliance with the procedural requirements and his failure to attend the hearing, the Commission dismissed the application for unfair dismissal remedy. The court held that the applicant's failure to comply with the directions and attend the hearing significantly undermined his case.

Orders