Steven Baggs v ALS Industrial Pty Ltd

[2018] FWC 987

[2018] FWC 987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Baggs
v
ALS Industrial Pty Ltd
(U2017/13821)

COMMISSIONER SAUNDERS NEWCASTLE, 15 FEBRUARY 2018

Application for an unfair dismissal remedy – s.399A application made by employer – unfair dismissal application dismissed.

[1] This decision sets out the reasons for my decision delivered ex tempore and recorded in transcript on 13 February 2018 to dismiss Mr Steven Baggs’ application for unfair dismissal (Application) against ALS Industrial Pty Ltd (ALS Industrial).

[2] At a hearing on 13 February 2018, ALS Industrial made an application pursuant to s.399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the Application.

Background

[3] Mr Baggs lodged his Application in the Fair Work Commission (Commission) on 22 December 2017. ALS Industrial lodged its response to the Application on 11 January 2018.

[4] On 29 January 2018, a conciliation conference was conducted by the Commission and was unsuccessful in resolving the matter.

[5] The matter was allocated to my chambers on 30 January 2018.

[6] The matter was listed for a directions hearing, by telephone, at 09:00am on 6 February 2018. On 30 January 2018, a Notice of Listing was sent to the email address nominated by Mr Baggs in the Application.

[7] At the directions hearing on 6 February 2018, there was no appearance by or on behalf of Mr Baggs. Shortly after 09:00am on 6 February 2018, my Associate attempted to contact Mr Baggs on the mobile number and email address listed in the Application. No contact was made, however a voicemail message was left, and an email was sent, requesting Mr Baggs to dial into the directions hearing urgently.

[8] In light of Mr Baggs’ failure to dial into the directions hearing on 6 February 2018, it did not proceed on that day.

[9] At 11:29am on 6 February 2018, my Associate sent an email to Mr Baggs (copied to ALS Industrial) informing him that the matter was listed for directions hearing (by telephone) at 3:30pm on 13 February 2018 and his Application may be dismissed without further notice to him if he did not participate in that directions hearing.

[10] At 11:33am on 6 February 2018, a Notice of Listing was sent to Mr Baggs’ nominated email address for the directions hearing, by telephone, at 3:30pm on 13 February 2018.

[11] My chambers did not receive any communication from, or on behalf of, Mr Baggs in response to the voicemail left for him on 6 February 2018 or the emails sent to him on the same day.

[12] At the directions hearing commencing at 3:30pm on 13 February 2018, there was no appearance by or on behalf of Mr Baggs. My Associate attempted to contact Mr Baggs on his mobile number shortly after 3:30pm. No contact was made, however a voicemail message was left requesting Mr Baggs to call my chambers urgently. The directions hearing commenced on 13 February 2018 in the absence of the applicant. Mr Van de Hoef participated in the directions hearing on behalf of the respondent. Mr Baggs did not participate in the directions hearing.

Application for dismissal

[13] During the directions hearing on 13 February 2018, ALS Industrial made an application pursuant to s.399A of the Act for the Application to be dismissed on the basis that Mr Baggs had failed to attend the directions hearings on 6 and 13 February 2018 in relation to the Application.

[14] Section 399A of the Act provides as follows:

“(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;

(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 powers under subsection (1) on application by the employer.”

[15] The discretion of the Commission to dismiss an application under s.399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances. 1

[16] During the directions hearing on 13 February 2018, I exercised my discretion pursuant to s.399A(1)(a) of the Act to dismiss Mr Baggs’ Application. I did so on the basis that dismissal of the Application was, in my view, appropriate in the circumstances to which I have referred and because I was satisfied that:

(a) there had been an application by the employer in accordance with s.399A(2); and

(b) in light of the history of the proceedings outlined above and the failure of Mr Baggs to attend the directions hearings scheduled for 6 February 2018 and the directions hearing which took place on 13 February 2018 without providing any explanation for such failure, Mr Baggs had unreasonably failed to attend a hearing held by the Commission (on 13 February 2018) in relation to his Application.

Conclusion

[17] For the reasons set out above, the unfair dismissal application lodged by Mr Baggs has been dismissed pursuant to s.399A(1)(a) of the Act.

COMMISSIONER

Appearances:

No appearance for the applicant.

Mr D Van de Hoef for the respondent.

Hearing details:

2018.

Newcastle (by telephone)

February 13.

<PR600428>

 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]

Printed by authority of the Commonwealth Government Printer