Roger Walsh v Toxfree Australia

[2016] FWC 1344

[2016] FWC 1344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roger Walsh
v
Toxfree Australia
(U2015/15448)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MARCH 2016

Application for relief from unfair dismissal.

[1] On 9 December 2015, Mr Roger Walsh made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Walsh’s employment had been terminated by Toxfree Australia on 19 November 2015

[2] The matter was listed for conciliation on 27 January 2016. Toxfree Australia and the applicant’s representative, Mr Chris Bartlett, attended conciliation. Mr Walsh did not attend the conciliation. Toxfree Australia made an offer of settlement and Mr Bartlett undertook to attempt to contact Mr Walsh to convey the offer.

[3] On 27 January 2016, Toxfree Australia filed an objection to the application and sought the dismissal of Mr Walsh’s application. Toxfree Australia based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the conciliation.

[4] On 5 February 2016, a telephone call was made to Mr Bartlett; he said that he had been unable to contact Mr Walsh by either email or telephone. Mr Bartlett subsequently emailed the Commission to say that he no longer acts for Mr Walsh.

[5] On 10 February 2016, Mr Walsh was mailed correspondence informing him of Toxfree Australia’s section 399A application. Mr Walsh was directed to file submissions and other documentary material in respect of Toxfree Australia’s application by close of business, on 19 February 2016. Mr Walsh was advised that if he failed to comply with this direction, his application would be dismissed.

[6] Mr Walsh did not file any material with the Commission.

[7] On 1 March 2016, a telephone call was made to Mr Walsh and a voicemail message was left requesting that he call the Commission. Mr Walsh has not contacted the Commission.

[8] 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.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[10] As Mr Walsh did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] While it is highly desirable that parties personally participate in conciliation conferences, Mr Walsh was represented at the conciliation conference. Further, the conciliation process is voluntary and a party cannot be prejudiced by his or her failure to participate.

[12] I am not satisfied therefore that Mr Walsh has unreasonably failed to comply with directions and accordingly the section 399A application is dismissed. Directions will be issued for the future conduct of the matter. I do note however that Mr Walsh is no longer represented. If he fails to comply with future directions of the Commission he risks having his application dismissed.

DEPUTY PRESIDENT

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