Stuart O'Brien v Collective Nutrition Pty Ltd T/A Collective Nutrition

[2018] FWC 1359

[2018] FWC 1359

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart O’Brien
v
Collective Nutrition Pty LTD T/A Collective Nutrition
(U2017/12746)

DEPUTY PRESIDENT ASBURY BRISBANE, 23 MARCH 2018

Application for an unfair dismissal remedy – Application under s.399A for the Commission to dismiss application for failure by Applicant to comply with a direction of the FWC relating to the application – Application granted – Unfair dismissal application dismissed.

[1] In a decision issued on transcript on 6 March 2018, I dismissed an application by Mr Stuart O’Brien (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Collective Nutrition Pty Ltd T/A Collective Nutrition (the Respondent). The application was filed in the Commission on 30 November 2017.

[2] The matter was listed for telephone conciliation on 19 December 2017 before a Fair Work Commission Conciliator, and was not resolved. The matter was then referred to the Unfair Dismissal Case Management Team and Directions were requiring each party to file their material for hearing. Amended directions were issued on 22 January 2018 which required, amongst other things, for the Applicant to file his material by no later than noon on Thursday 22 February 2018.

[3] The matter was allocated to me on 15 February 2017 to conduct a hearing of the substantive application on 12 & 13 March 2018. The matter was further listed before Commissioner Booth for a member assisted conciliation to be conducted on 7 March 2018. The Applicant did not file his material by noon on 22 January 2018 as required. At 2:39pm on 28 February 2018, the Respondent filed an application under s. 399A of the Act seeking that the Applicant’s unfair dismissal application be dismissed on the basis that the Applicant had failed to comply with the Directions requiring him to file his material by no later than noon on 22 February 2018. A copy of the s. 399A application was served on the Applicant.

[4] At 4:48pm on 28 February 2018, Commissioner Booth’s Associate wrote to the Applicant in reference to the Respondent’s s.399A application and the fact that the Applicant had failed to comply with the Directions, and requested that the Applicant advise whether he intended to file any material by noon on 1 March 2018. The Applicant did not respond to this correspondence. The file was then referred to me to deal with the s. 399A application.

[5] I instructed my Associate to send correspondence to the Applicant on 1 March 2018 regarding the Respondent’s s.399A application, and again informing him that he had failed to file his material in accordance with the directions. I directed the Applicant to respond to the Respondent’s s.399A application by no later than close of business 5 March 2018. A telephone hearing was listed for 1:00pm 6 March 2018 to determine the Respondent’s s.399A application to have the substantive application dismissed. The Applicant was informed that if he failed to respond to my correspondence or to attend the hearing, that his application would be dismissed.

[6] The Applicant did not respond to my correspondence, or the notice of listing for the hearing. At the commencement of the hearing, my Associate attempted three times to contact the Applicant on the mobile telephone number provided on his application. The Applicant was unable to be contacted to attend the hearing. Mr Martin Stirling, Associate of Gilchrist Connell represented the Respondent. Mr Andrew Neilan, Managing Director of the Respondent was also in attendance. The Hearing proceeded in the absence of the Applicant.

Legislation

[7] Section 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.

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.”

Conclusions

[8] I am satisfied that the Applicant has failed to comply with directions of the Commission relating to his application and failed to attend a hearing conducted by the Commission. The Applicant has provided no reasonable explanation for his failure to comply with directions of the Commission, or his failure to attend the hearing of 6 March 2018.

[9] The Applicant has also failed to respond to correspondence of the Commission regarding his failure to comply with the directions, or to seek an extension in which to file his material.

[10] I am satisfied that the conduct of the Applicant in this matter triggers the discretion in s.399A of the Act to dismiss his application and that the discretion to dismiss the application should be exercised.

[11] The Respondent’s application under s.399A(1)(b) is granted. The application in U2017/12746 is dismissed and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Mr M. Stirling of Gilchrist Connell for the Respondent.

Hearing details:

Brisbane.

6 March.

2018.

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