Sam Westaway v T D South Group Pty Ltd

[2024] FWC 2251

[2024] FWC 2251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sam Westaway
v

T D South Group Pty Ltd

(U2024/5680)

DEPUTY PRESIDENT MASSON MELBOURNE, 22 AUGUST 2024

Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of Fair Work Act 2009.

1. On 20 May 2024, Mr Sam Westaway (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with T D South Group Pty Ltd (the Respondent) was unfair. The Respondent raised one jurisdictional objection that being the Applicant was not dismissed.

1. The matter was listed for conciliation before a staff member of the Commission on 25 June 2024. On 18 June 2024, the Applicant made an adjournment request, which was granted. The matter was then re-listed for a staff conciliation on 9 July 2024, however the telephone conciliation conference did not proceed as despite attempts to contact him, the Applicant failed to attend. In contacting the Applicant by email, the staff conciliator sought that the Applicant either join the conference via the Microsoft Teams link or provide a personal telephone number, as the only telephone number supplied by the Applicant in his Form F2 application was that of the Respondent. I note that a valid telephone number for the Applicant has since not been provided.

1. The matter was allocated to my Chambers on 10 July 2024 following which, directions were issued to the parties that same day setting down a timetable for the filing of material by both parties. The directions issued to the parties on 10 July 2024 relevantly included the following; 

“…………… 

SUBMISSIONS AND WITNESS STATEMENTS

[3] The submissions must include all relevant facts, dates and incidents to support all claims made.

[4] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.

[5] Please note that witness statements are designed to take the place of evidence-in-chief.

………………………. 

NON-COMPLIANCE WITH THESE DIRECTIONS

[8] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.

[9] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.

……………….” 

1. The Applicant then failed to file his material in relation to both the jurisdictional objection raised by the Respondent and the merits of his application on or by close of business 7 August 2024 as required by the directions. Correspondence was then sent by my Chambers to the Applicant on the morning of 8 August 2024 noting that he had failed to file his material as required by the directions and seeking that he file his materials as soon as possible.

1. The Applicant did not respond to the email sent to him on 8 August 2024 advising of his non-compliance with the directions nor did he file any material.

1. The matter was then listed for an on-line non-compliance hearing at 10.00am on 19 August 2024. At 10.07am my Associate sent an email to the Applicant noting that he had not yet joined the non-compliance hearing scheduled to commence at 10am, providing the Microsoft Teams link again and requesting that the Applicant immediately contact Chambers by email or telephone if he experienced any issues joining. The Applicant did not join the Teams meeting nor contact my Associate by email or telephone.

1. The non-compliance hearing proceeded and was attended by Mr D Roohan, General Manager and Mr A Mansell, Director, for the Respondent. Mr Roohan made an oral application at the non-compliance hearing that the Applicant’s unfair dismissal application be dismissed pursuant to s.399A(1) of the Act.

1. Correspondence was sent to the Applicant by my Chambers on 19 August 2024 following the non-compliance hearing, advising him that the Respondent had made an application pursuant to s 399A(2) of the Act that his application for an unfair dismissal remedy be dismissed pursuant to s 399A(1) of the Act. The Applicant was invited to provide submissions by close of business on Wednesday, 21 August 2024 as to why his application should not be dismissed. The Applicant was also advised that should he seek to be heard in relation to the s 399A application he should advise my Chambers. Otherwise, the matter would be dealt with on the papers. No submissions were filed by the Applicant in response to the correspondence sent to him on 19 August 2024.

Consideration 

1. Turning now to whether the application should be dismissed, s 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. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss his application for an unfair dismissal remedy by the close of business on Wednesday 21 August 2024, I will determine the application on the papers.

1. The Applicant has demonstrated a pattern of non-compliance with directions of the Commission. He has done so by failing to attend the staff conciliation conference scheduled for 9 July 2024, failing to attend the non-compliance hearing listed for 19 August 2024 and failing to file his materials by 7 August 2024 as required by the above-referred directions. No extension of time has been sought by the Applicant in relation to his non-compliance with the directions. Nor has he provided an explanation for his non-compliance despite being afforded an opportunity to do so.

1. In the circumstances I have decided to grant the Respondent’s application under s.399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

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