Rex Hardy v Gympie Foam & Rubber
[2022] FWC 2839
•21 OCTOBER 2022
| [2022] FWC 2839 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rex Hardy
v
Gympie Foam & Rubber
(U2022/7150)
| DEPUTY PRESIDENT LAKE | BRISBANE, 21 OCTOBER 2022 |
Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed.
Mr Rex Hardy (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Gympie Foam & Rubber (the Respondent). Mr Andrew Bishop of the Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A(1)(b) of the Act.
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.”
Procedural background
On 12 September, Vice President Catanzariti’s Chambers allocated this matter to me.
On 27 September, I issued the following Directions: a conference was listed for 3.00pm on 6 October and a hearing on the jurisdictional objection and merits of the dismissal was listed for 10.00am on 8 November. The Applicant was to file their submissions by 4.00pm on 11 October, the Respondent was to file their submissions by 4.00pm on 25 October, and the Applicant was to reply by 4.00pm on 1 November.
On 6 October, the conference was held and both parties were in attendance and agreed with the Directions as issued.
The Applicant failed to file any submissions nor contact Chambers by 11 October.
On 12 October at 10.40am, my Chambers received correspondence from the Respondent.
“I have not received the Applicants [sic] submissions that were required to be filed by the close of business yesterday according to the Directions with a copy to be sent to me.
Can you please let me know what is happening.”
On 12 October at 11.30am, my Chambers wrote to the parties and noted that the Applicant had failed to comply with the Directions and not filed submissions. Attached to the correspondence was a copy of the Notice of Listing and Directions issued on 27 September and a blank Form F50.
“Dear parties,
Chambers refers to the Directions that were issued to the parties on Tuesday, 27 September 2022 (attached).
Mr Hardy failed to comply with the Directions by the date specified in those Directions.
In accordance with paragraph [1] of the Directions, Mr Hardy was required to file in the Commission, and serve on the Respondent, by 4.00pm on Tuesday, 11 October 2022:
“an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of their application and in respect of the jurisdictional objection raised by the Respondent”.
As a result of this non-compliance, Mr Hardy is directed to provide by Thursday, 13 October 2022 before 4.00pm (QLD Time):
· explanation and evidence as to why he failed to comply; and
· all material for the hearing.
Failure to do so will result in the Commission considering dismissal of your application.
Mr Hardy, if you do not wish to proceed with the application, you should complete the attached Notice of Discontinuance and forward it to Chambers by Thursday, 13 October 2022 before 4.00pm (QLD Time).”
[emphasis not added]
The Applicant failed to comply with the non-compliance email.
On 13 October at 5.21pm, my Chambers wrote to the parties again, noting the Applicant’s second failure to comply with the Directions. Attached to the correspondence was a copy of the Notice of Listing and Directions issued on 27 September, a blank Form F1, and a blank Form F50.
“Dear parties,
Chambers refers to the Directions that were issued to the parties on Tuesday, 27 September 2022 (attached).
Mr Hardy failed to comply with the Directions by the date specified in those Directions.
In accordance with paragraph [1] of the Directions, Mr Hardy was required to file in the Commission, and serve on the Respondent, by 4.00pm on Tuesday, 11 October 2022:
“an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of their application and in respect of the jurisdictional objection raised by the Respondent”.
As a result of this non-compliance, Mr Hardy is directed to provide by Thursday, 13 October 2022 before 4.00pm (QLD Time):
· explanation and evidence as to why he failed to comply; and
· all material for the hearing.
The Applicant failed to comply with the non-compliance email.
Section 399A of the Fair Work Act 2009 (Cth) 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 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.”
Please note that the Commission cannot dismiss an application pursuant to section 399A unless the employer makes an application for the Commission to do so. If Gympie Foam & Rubber wishes to make an application pursuant to section 399A to have the application dismissed on the grounds that Mr Hardy failed to comply with a direction of the Commission, Gympie Foam & Rubber may do so using a Form F1 Application (no specific form provided) attached. A copy of the section 399A application and any supporting documentation should be forwarded to the Commission and copied to Mr Hardy by 4.00pm on Monday, 17 October 2022.
Mr Hardy, if you do not intend to proceed with the application you should complete the attached Notice of Discontinuance and forward it to Chambers by 4.00pm on Monday, 17 October 2022.”
[emphasis not added]
On 17 October at 2.58pm, the Respondent filed with the Commission and served on the Applicant a Form F1 requesting that the matter be dismissed.
The Respondent’s submissions
The Respondent in their Form F1 highlighted that the Applicant failed to comply with the Directions of the Commission despite the Applicant being given extra time to comply.
The Respondent sought that the matter be dismissed pursuant to s.399A(1)(b) of the Act.
Consideration
The Applicant failed to engage in a timely manner with the Commission regarding his submissions.
I have received no communication from the Applicant since the conference on 6 October.
In spite of Chambers attempting to communicate with the Applicant on 12 October and 13 October, the Applicant did not engage.
The failure to provide submissions, nor provide reasons why he has not followed the Directions, has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A of the Act.
The process undertaken has been in accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent as a Form F1, and a copy was served on the Applicant. The Applicant had five days to provide a response to the application and was advised that a failure to do so may result in their application being dismissed.
I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed for failure to follow a Direction from the Commission. Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
[1] [2021] FWCFB 875 [57].
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