Regan Gordon v Positive Group Australia Pty Ltd T/A Positive Lending Solutions

[2017] FWC 7039

[2017] FWC 7039

FAIR WORK COMMISSION

DECISION

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

Regan Gordon
v
Positive Group Australia Pty Ltd T/A Positive Lending Solutions
(U2017/11930)

COMMISSIONER HAMPTON ADELAIDE, 22 DECEMBER 2017

Application for relief from unfair dismissal – failure of applicant to engage in the process – s.399A application made by employer – no reasonable explanation provided by applicant – unreasonable act or omission – discretion exercised – unfair dismissal application dismissed.

[1] On 9 November 2017, Mr Regan Gordon made an application under s.394 of the Fair Work Act 2009 (the FW Act) for an alleged unfair dismissal by his former employer Positive Group Australia Pty Ltd T/A Positive Lending Solutions (the respondent).

[2] The matter was listed for conciliation by telephone on 29 November 2017 before a Fair Work Conciliator. The conference could not take place due to the Conciliator being unable to contact Mr Gordon, despite several attempts.

[3] The matter was subsequently allocated to the Commission as currently constituted for determination. A directions conference to begin the determination of the unfair dismissal matter was listed for 19 December 2017 and notice of this conference was provided to both parties, including Mr Gordon via the contact details provided on his application. There was no participation by the applicant, or by anyone on his behalf, at this conference.

[4] Correspondence on the file provided by the respondent indicated an apparent intention by the applicant to discontinue this application; however, the Commission has not had any direct contact from Mr Gordon, despite various attempts by phone and email to have him confirm his intentions.

[5] During the course of the directions conference, the respondent made a verbal application under s.399A(1)(a) of the FW Act to dismiss the unfair dismissal application. The Commission accepted the application and to the extent necessary, waived compliance with the Fair Work Commission Rules 2013.

[6] The Commission wrote to Mr Gordon on 19 December 2017 advising him of the s.399A application and indicating that should he not engage in the process and provide reasons for his non-participation, the Commission would determine the matter on the basis of the materials currently before it. The Commission also invited Mr Gordon to provide a notice of discontinuance as an alternative.

[7] Mr Gordon has not subsequently filed any material or otherwise communicated any position to the Commission.

[8] Section 399A of the FW 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.

....

(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.”

[9] The evident purposes of s.399A is to provide the Commission with an additional discretion to dismiss unfair dismissal applications where there is a relevant unreasonable act or omission by an applicant in relation to non-attendance at a conference or hearing, non-compliance with a direction or order, or a failure to discontinue a settled application. Unreasonable in this context would include non-compliance without any reasonable excuse. 1

[10] Mr Gordon has been given notice of the s.399A application and the intention of the Commission to deal with that matter in the absence of compliance with the correspondence issued on 19 December 2017. I am satisfied that he has had an adequate and reasonable opportunity to be heard on the matters and has been afforded procedural fairness.

[11] Accordingly, as advised to the parties, I will now determine the s.399A application on basis of the material presently before the Commission.

[12] I have proceeded on the basis that the conference conducted by the Commission on 19 December 2017 was a conference in relation to the unfair dismissal application as contemplated by s.399A(1)(a) of the FW Act. This is appropriate given the nature of the conference and the evident purpose of the provision. I am also satisfied that Mr Gordon failed to attend this conference within the meaning of the FW Act.

[13] The s.399A application has been made by the employer as required by s.399A(2) of the FW Act.

[14] Pursuant to s.399A(1) of the FW Act, the Commission may dismiss the unfair dismissal application if satisfied that Mr Gordon has unreasonably failed to attend a conference conducted by the Commission in relation to the application.

[15] Mr Gordon did not file any material in opposition to the s.399A application and has not provided any satisfactory reason for his non-attendance at the conference.

[16] I am satisfied that Mr Gordon has unreasonably failed to attend a conference in relation to the unfair dismissal matter. Mr Gordon has also been provided with a reasonable opportunity to advance his case and has not done so. Indeed, Mr Gordon has failed to engage with the Commission at all regarding his application and has, in effect, abandoned the matter. In all of the circumstances I consider that it is appropriate to exercise my discretion to dismiss the unfair dismissal application.

[17] Accordingly, Mr Gordon’s unfair dismissal application is to be dismissed. An order 2 to that end is being issued in conjunction with this decision.

COMMISSIONER

 1   See the Explanatory Memorandum to the Fair Work Amendment Act 2012 at 161 - 163.

 2   PR599117.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR599116>