Riley Bethune v The Trustee for Barton Unit Trust T/A Gundagai Lamb (GMP)
[2022] FWC 404
| [2022] FWC 404 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Riley Bethune
v
The Trustee for Barton Unit Trust T/A Gundagai Lamb (GMP)
(U2021/9860)
| COMMISSIONER MATHESON | SYDNEY, 28 FEBRUARY 2022 |
Application for an unfair dismissal remedy – s.399A – application dismissed.
On 8 November 2021, Mr Riley Bethune (Applicant) applied to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (Act) against the Trustee for Barton Unit Trust T/A Gundagai Lamb (GMP). Of note, the response to the application states that the correct name of the employer is “Hirono Pty Ltd T/A Gundagai Meat Processors” (Hirono). However, as the Applicant did not appear before the Commission, as explained below, this discrepancy could not be clarified.
In its response to the application, Hirono raised a jurisdictional objection to the application, which was subsequently withdrawn.
The application was listed for a mention and directions hearing on 13 January 2022. The notice of listing was emailed to the parties by my Chambers on 11 January 2022. The Applicant did not attend the mention and directions hearing and attempts by my Chambers to contact the Applicant via telephone were unsuccessful. A voicemail message was left requesting the Applicant contact my Chambers.
On 13 January 2022, my Chambers emailed the parties seeking, by 17 January 2022, an explanation from the Applicant for his non-attendance at the mention and directions hearing and confirmation from Hirono as to whether it intended to press or withdraw the jurisdictional objection raised. The Applicant did not provide an explanation for his non-attendance at the mention and directions hearing by 17 January 2022. Hirono confirmed on 17 January 2022 that it would withdraw the jurisdictional objection raised to the application.
Correspondence was emailed to the parties on 18 January 2022 setting out directions. The directions required the Applicant to file with the Commission and serve on the respondent the Applicant’s outline of argument, statements of evidence and document list by 4.00pm on 2 February 2022.
On 19 January 2022, my Chambers spoke to the Applicant via telephone. The Applicant informed my Chambers that he had received the emails from Chambers sent on 13 January and 18 January 2022 but that he had been busy and had not read them. My Chambers advised the Applicant that the email of 18 January 2022 contained directions that the Applicant was required to comply with in order to pursue his application. My Chambers asked the Applicant whether he had any questions and the Applicant responded that he did not.
The application was listed for a case management conference on 25 January 2022. The notice of listing was emailed to the parties by my Chambers on 20 January 2022. The Applicant did not attend the case management conference and attempts by my Chambers to contact the Applicant via telephone were unsuccessful.
The Applicant did not file materials by 2 February 2021, in accordance with the directions issued by the Commission on 18 January 2022.
On 14 February 2022, my Chambers sent a further email to the Applicant explaining that if the Applicant wished to proceed with the application, the Applicant would need to seek an extension of time for filing and would need to explain the reasons for non-compliance with the earlier directions. The correspondence directed that the Applicant provide a response by 4.00pm on 16 February 2022. The Applicant was advised that non-compliance with the directions may result in dismissal of the matter.
The Applicant did not comply with the directions of 14 February 2022 or otherwise contact my Chambers.
Despite the above attempts to contact the Applicant and to have the Applicant provide some written advice about the application, as at the date of this decision, the Applicant has not responded to any of the correspondence sent by my Chambers.
Section 399A of the 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.”
The Applicant failed to attend the mention and directions hearing on 13 January 2022 and the case management conference on 25 January 2022. The Applicant also failed to comply with directions of the Commission in relation to the application.
In the circumstances, I have decided to dismiss the application pursuant to s.399A of the Act. An order to that effect will be issued.
COMMISSIONER
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