Steven Raftellis v Bridgethaw No. 2 Pty Limited

[2024] FWC 3392

[2024] FWC 3392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 399A - Dismissing applications

Steven Raftellis
v

Bridgethaw No. 2 Pty Limited

(U2024/11505)

COMMISSIONER SLOAN SYDNEY, 5 DECEMBER 2024

Application for an unfair dismissal remedy – section 399A application to dismiss – application granted

1. On 26 September 2024, Steve Raftellis filed an application for an unfair dismissal remedy.[1] He has done nothing to involve himself in the proceedings since then.

1. The matter was listed for conciliation on 7 November 2024. That could not proceed as Mr Raftellis did not join the call. The Commission made several unsuccessful attempts on the day to make contact with him.

1. On the same day, the Commission wrote to the parties. Amongst other things, the Commission’s correspondence asked Mr Raftellis to explain why he was unable to attend and participate in the scheduled conciliation. The letter invited the parties to indicate whether they wished to have the matter listed again for conciliation. The respondent, Bridgethaw No. 2 Pty Limited (“Bridgethaw”), responded by saying that it was willing to participate in conciliation. Mr Raftellis did not respond.

1. The matter was allocated to me. I listed the matter for directions by telephone on 26 November 2024. Mr Raftellis did not join the call. My Chambers made several unsuccessful attempts at the time to contact him by telephone and by email.

1. I arranged for an email to be sent to Mr Raftellis later on 26 November 2024, in these terms:

“Dear Mr Raftellis

These proceedings were listed for mention before Commissioner Sloan at 3.00pm today. You did not attend. Several attempts were made to contact you by telephone and email, without success.

Commissioner Sloan also understands that you chose not to attend conciliation conferences that had been arranged earlier in these proceedings.

As the Applicant in these proceedings, you are expected to be active in progressing your claim. This includes attending conferences, mentions and hearings convened by the Commission, and complying with any other directions that the Commission makes. If you fail to do so, your application may be dismissed. For example, the Respondent could ask the Commission to dismiss the matter under s 399A of the Fair Work Act 2009.

Commissioner Sloan requests that you respond to this message providing a reason for your failure to attend today’s mention by 12.00 noon tomorrow, 27 November 2024. Please note that your response (and all correspondence to the Commissioner’s Chambers) must be copied to the Respondent.

If you do not wish to proceed with your application, please complete a Form F50 Notice of discontinuance and provide it to us by reply email (copied to the Respondent). After the completed form is received, we will close the file.” (Emphasis in original)

1. Mr Raftellis did not respond to that email.

1. I arranged for an email to be sent to Bridgethaw’s representative, copied to Mr Raftellis, on 27 November 2024. The email stated that we had received no response to our email to Mr Raftellis of 26 November 2024. It enquired whether there was an application that the Respondent wished to make.

1. In an email sent to Chambers on 28 November 2024, Bridgethaw asked the Commission to dismiss the matter under s 399A.

1. I arranged for an email to be sent to Mr Raftellis later on 28 November 2024, in these terms:

“Dear Mr Raftellis

You will have seen from the email below that Bridgethaw No. 2 Pty Ltd has made an application for these proceedings to be dismissed pursuant to s 399A of the Fair Work Act 2009.

In keeping with the guidance of the Full Bench in Lockyear v Graeme Cox[2021] FWCFB 875 at [57], Commissioner Sloan wishes to give you an opportunity to respond to the s 399A application.

You are directed to file and serve, by 4.00pm on 2 December 2024, any submissions you wish to make to address the s 399A application.

Should you elect not to file and serve any submissions, the s 399A application will be determined ‘on the papers’ – that is, without a hearing – without further recourse to you.” (Emphasis in original)

Determination

1. Section s 399A(1) enables the Commission to dismiss an unfair dismissal application if the employer applies under s 399A(2) for it to do so. The grounds on which the Commission may dismiss an unfair dismissal application include the Commission being satisfied that the applicant has unreasonably “failed to comply with a direction or order of the FWC relating to the application”.[2]

1. The Commission is not required to hold a hearing except as provided by the Act.[3] There are no facts in dispute in respect of Bridgethaw’s dismissal application that would require the Commission to conduct a hearing of it.[4]

1. The jurisdictional pre-requisites for me to dismiss Mr Raftellis’s unfair dismissal application are met.[5] 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. This is 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”.[6]

1. Numerous attempts have been made to contact Mr Raftellis. He has failed to engage with his unfair dismissal application. He has ignored repeated attempts to make contact with him. He has shown no willingness to prosecute his case and has taken no steps to do so.

1. In these circumstances, I have determined to grant Bridgethaw’s application to dismiss the proceedings.

1. I order that Mr Raftellis’s unfair dismissal application be dismissed.

COMMISSIONER

[1] The application was made under Part 3-2 of the Fair Work Act 2009 (“Act”). In this decision, references to legislative provisions are references to the Act

[2] Section 399A(1)(b)

[3] Section 593(1)

[4] Section 397 only requires a hearing to be conducted in relation to a matter arising under Part 3-2 if, and to the extent, that the matter involves facts the existence of which is in dispute.

[5] Section 399A(2) is satisfied by Bridgethaw’s application. Section 399(1)(b) is satisfied by Mr Raftellis’s failure to comply with directions, as described above. See Lockyear v Graeme Cox[2021] FWCFB 875 at [55]

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

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