Rhys Abel v Rockingham Golf Club Inc

[2023] FWC 1728

[2023] FWC 1728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rhys Abel
v

Rockingham Golf Club Inc

(U2023/2385)

DEPUTY PRESIDENT O’KEEFFE PERTH, 14 JULY 2023

Application for an unfair dismissal remedy - application dismissed pursuant to s.399A of the Act.

1. On 21 March 2023, Mr Rhys Abel (the Applicant) made an application to the Fair Work Commission (FWC) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant submitted that his employment had been unfairly terminated by the Rockingham Golf Club Inc (the Respondent) on 28 February 2023.

1. Conciliation on 16 May 2023 did not resolve the matter.

1. The Applicant was advised by the FWC on 18 May 2023 that he had not correctly named the Respondent in his Form F2, was given options as to how to deal with this issue and was asked to respond in writing by 4.00pm on 25 May 2023.  The Applicant failed to respond.

1. The FWC then sent the Applicant an email noting that he had not complied with the instructions sent on 18 May 2023 and given until 31 May 2023 to send a response, which was received in time.

1. I conducted a conference on 14 June 2023 to attempt to resolve the matter but the parties could not agree settlement terms.  As such, on 19 June 2023 I issued directions for a hearing to be held on 28 July 2023. 

1. The Applicant was directed to file submissions by 4.00pm AWST on 3 July 2023.  On 3 July 2023 my chambers received an email from the Applicant requesting an adjournment for an unspecified period due to the illness of his father.  My chambers responded seeking evidence of his father’s illness and the length of the adjournment he was seeking to be provided, by 4.00pm on 4 July 2023.  No response was received by this time, however, it appears that the Applicant sent a response late that evening, which was then received the following day. 

1. The Respondent advised that it had no objection to an extension and so new directions were issued, requiring the Applicant to file submissions on 10 July 2023, being a one week extension on the original date.  On that date, the Applicant did not file submissions but again requested an unspecified extension.

1. On 12 July 2023 the Respondent wrote to chambers noting that the Applicant had again failed to comply with directions and noted that again the request for an extension had been made on the date submissions had been due.  The Respondent requested that the FWC consider dismissing the Applicant’s application as per s399A of the Act.  On 12 July 2023 my chambers wrote to the Applicant advising him of the request from the Respondent regarding dismissing his application and advising him that no further extensions would be granted.  He was directed to file his submissions by 4.00pm 13 July 2023.  No response was received from the Applicant by that time or subsequently. 

1. At 4.31pm on 13 July 2023 the Respondent wrote to chambers noting that the Applicant had again failed to comply with directions and formally requesting that the application be dismissed.  My chambers wrote to the Applicant at 6.10pm on 13 July 2023 advising him that again he had not complied with directions and also that the Respondent was now formally requesting that the application be dismissed.  He was directed to file with chambers by 1.00pm 14 July 2023 his reasons why the application should not be dismissed and advised that if no response was received his application would be dismissed.  By 3.30pm on 14 July 2023 no correspondence had been received from the Applicant.

1. Section 399A of the 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.”

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary.  Mr Abel has continually failed to comply with directions and failed to make any contact with the FWC in response to emails sent to him, even when such emails warned him of the consequences of failure to respond.  Although I note that he has personal circumstances that he claims are impacting his ability to make submissions, this does not excuse his failure to respond to correspondence from the FWC.  In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Abel’s application. An order[1] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

[1] PR764274

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