Shane Robinson v Reo Tech Solutions Australia Pty Ltd

[2024] FWC 1082

[2024] FWC 1082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shane Robinson
v

Reo Tech Solutions Australia Pty Ltd

(U2024/2135)

COMMISSIONER LIM PERTH, 26 APRIL 2024

Application for an unfair dismissal remedy – section 399A – application dismissed

1. Introduction

1. On 27 February 2024, Shane Robinson (the Applicant) applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy in respect of his dismissal by Reo Tech Solutions Australia Pty Ltd (the Respondent).

1. I listed the matter for a case management conference on 17 April 2024. The Applicant did not attend the case management conference. My chambers called the Applicant at 2:01pm and 2:06pm on his nominated phone number with no answer. Two voicemails were left requesting that the Applicant immediately contact the Commission.

1. I proceeded with the case management conference with the Respondent. The Respondent made an oral application pursuant to s399A of the Act to dismiss the Applicant’s unfair dismissal application. I waived compliance with the Fair Work Commission Rules 2024 pursuant to s 586 of the Act and accepted the s 399A application.

1. On 17 April 2024, chambers wrote to the parties to inform them of the Respondent’s s 399A application and directed the Applicant to provide a response or evidence on why his application should not be dismissed by 19 April 2024. There was no response from the Applicant. A further email was sent to the Applicant on 22 April 2024 advising if no response was received, then I would proceed consider the s 399A application on the material before me.

1. To date, the Applicant has not provided any further correspondence or materials to the Commission.

1. Consideration

1. Section 399A of the Act states 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.

Note 1: For another 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.”

1. The relevant principles for s 399A applications were summarised by the Full Bench in Lockyear v Graeme Cox[1] 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. 14 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 15 and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.

1. The Respondent’s grounds for the s 399A application are that the Applicant failed to attend the conference on 17 April 2024 and his attendance was unreasonable as he did not inform the Commission or the Respondent prior to the conference that he did not intend to participate.

1. There are no facts in dispute in this s 399A application.

1. I find that an application has been made under s 399A, and the Applicant has been served with a copy of the application and was given the opportunity to respond to it. I also find that the Applicant’s failure to attend the conference on 17 April 2024 and his lack of notice satisfies s 399(1)(a) of the Act. This gives rise to my discretion as to whether to dismiss his unfair dismissal application.

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly.[2]

1. In this matter, the Applicant did not attend the case management conference for his own application. He has not responded to subsequent directions from chambers on 17 April 2024 or 22 April 2024, nor sought an extension of time to respond to those directions. I consider it appropriate to exercise my discretion to dismiss his application for unreasonably failing to comply with s399A(1)(a) of the Act.

1. The application is therefore dismissed. An order will issue accordingly.[3]

COMMISSIONER

[1] [2021] FWCFB 875.

[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].

[3] PR774232.

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<PR774229>