Rohan Paterson v Skycon Air Pty Ltd

[2023] FWC 2296

[2023] FWC 2296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rohan Paterson
v

Skycon Air Pty Ltd

(U2023/5303)

COMMISSIONER CRAWFORD SYDNEY, 8 SEPTEMBER 2023

Application for an unfair dismissal remedy

1. On 15 June 2023, Rohan Paterson (Mr Paterson) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed from his employment with Skycon Air Pty Ltd (Skycon Air).

1. Mr Paterson did not attend a conciliation conference with a Commission staff member on 17 July 2023. Representatives of Skycon Air attended the conference.

1. Mr Paterson did not attend a conciliation conference with a Commission staff member on 14 August 2023. Representatives of Skycon Air attended the conference.

1. Mr Paterson also did not attend a Mention/Direction listed before me on 25 August 2023. Representatives of Skycon Air attended the Mention/Direction. All attempts to contact Mr Paterson were unsuccessful.

1. On 4 September 2023, Skycon Air filed an application under s.399A of the Fair Work Act 2009 (Cth) (FW Act) using the Commission’s Form F1.

1. On 4 September 2023, I directed Mr Paterson to file any material in response to Skycon Air’s application by 5pm on Wednesday, 6 September 2023. Mr Paterson did not file any material or make any contact with Chambers.

1. 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.

…

(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 relevant principles to consider Skycon Air’s application under s.399A were helpfully summarised in Lockyear v Graeme Cox[2021] FWCFB 875 (Lockyear) at [57]:

“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”

1. Section 399A(2) is obviously satisfied by Skycon Air’s application. Similarly, s.399A(1)(a) is satisfied by Mr Paterson’s failure to attend conferences on 17 July 2023 and 14 August 2023, and a Mention/Direction on 25 August 2023. The jurisdictional pre-requisites are met for Mr Paterson’s application to be dismissed (per Lockyear at [55]) and it is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their ‘day in court’ (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

1. Numerous attempts have been made to contact Mr Paterson but to no avail. Two conferences and a Mention/Direction hearing have been arranged in relation to Mr Paterson’s application and he has failed to attend all listings with no explanation. 

1. In these circumstances, I see no utility in allowing Mr Paterson’s claim to continue and I therefore grant Skycon Air’s application under s.399A.

1. An order giving effect to this decision will be issued separately in PR766036.

COMMISSIONER

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

<PR766035>