Sean Craft v Simpson Farms Pty Ltd

[2022] FWC 2142

[2022] FWC 2142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sean Craft
v

Simpson Farms Pty Ltd

(U2022/5059)

DEPUTY PRESIDENT LAKE BRISBANE, 11 AUGUST 2022

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

1. Mr Sean Craft (the Applicant) lodged an Application (Application) with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Simpson Farms (the Respondent). Mr Nathan Atkinson and Mr William Farr has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.

Legislation

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.

Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

Procedural background

1. On 20 June 2022, Vice President Catanzariti’s Chambers allocated this matter to me.

1. On 6 July 2022, I issued the following directions. A conference was listed for 10.00am on 14 July 2022 and a hearing on the jurisdictional objection and the merits was listed for 10.00am on 11 August 2022. The Respondent was to file their submissions by 4.00pm on 20 July 2022, the Applicant was to file their submissions by 4.00pm on 3 August 2022, and the Respondent was to reply by 4.00pm on 8 August 2022.

1. On 14 July 2022, the Conference was held and both parties were in attendance and agreed with the Directions as issued.

1. The Respondent duly filed their submissions on the correct date. The Applicant failed to file any submissions nor contact Chambers by 3 August 2022.

1. On 9 August, my Chambers wrote to the parties and noted that the Applicant had failed to comply with the Directions and not filed submissions.

“Dear parties,

Chambers refers to the Directions that were issued to the Parties on 6 July 2022.

Mr Craft failed to comply with the Directions by the date specified in those Directions.

As a result of this non-compliance, the Deputy President will rely upon only the evidence he has been provided and a testimony on the day to make his decision.

Mr Craft, if you do not wish to proceed with the application, you should complete the attached Notice of Discontinuance and forward it to Chambers before 4pm today.” [emphasis not added]

1. On 11 August 2022 at 10.05am, the hearing was convened by Microsoft Teams. Only the Respondent was in attendance. Chambers attempted to call the Applicant on the number provided in the Applicant’s Form F2, but did not respond. The Respondent moved to file a Form F1 requesting that the matter be dismissed. At 11.09am, the Respondent filed the Form F1 with the Commission. At 11.31am, Chambers responded to this application, copying in the Applicant to the proceedings,

“Dear Mr Atkinson,

Chambers acknowledges receipt of the Form F1. The Deputy President will move to consider this application.

Mr Craft, the Deputy President is minded to dismiss your application for failing to follow directions and for non-attendance at the hearing today.

if you have any response, please provide it to Chambers by 4pm today.”

1. At 12.41pm, the Applicant called my Chambers and apologised for not being in attendance. Chambers provided the Applicant with an update on the matter and requested the Applicant to respond to the email sent to parties at 11.31am.

1. At 3.22pm, the Applicant responded to the email and confirmed he had no further submissions but gave no reason as to why he failed to follow the Directions or attend the hearing.

Respondent’s submissions

1. The Respondent in their Form F1 highlighted that the Applicant filed to comply with the directions of the Commission and failed to attend the hearing.

1. The Respondent sought that the matter be dismissed pursuant to s.399A of the Act.

Consideration

1. We received no communication from the Applicant on the due date as to what evidence and submissions he wished to rely upon.

1. We wrote to the Applicant two days prior to the hearing to clarify what material he was to rely upon or if he wished to discontinue. No response was received.

1. On 11 August 2022 at 10.00am, we received no communication regarding the Applicant’s inability to attend. The hearing occurred at the time scheduled and the Applicant did not attend. We attempted to call the Applicant twice and he failed to respond. The Respondent indicated they wished to file a Form F1 to have the matter be dismissed under s.399A of the Act. The Applicant contacted Chambers by phone several hours after the hearing.

1. In spite of Chambers writing to him two days prior to the hearing, he did not communicate that he would not be attending the hearing nor provide reasons as to why he could not.

1. The failure to attend the hearing, nor provide reasons why he could not, has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A of the Act.

1. The process undertaken has been accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent, as a Form F1, and a copy was served on the Applicant. The Applicant was provided with an opportunity to respond to the application and advised that a failure to do so may result in his application being dismissed.

1. I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed for failure to attend the hearing. Accordingly, I order that the application be dismissed under s.399A(1)(a).

DEPUTY PRESIDENT

[1] [2021] FWCFB 875 [57].

Printed by authority of the Commonwealth Government Printer

<PR744725>