Thomas Bull v Gourmet Chef Foods Pty Ltd T/A Gourmania

[2020] FWC 4803

[2020] FWC 4803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thomas Bull
v
Gourmet Chef Foods Pty Ltd T/A Gourmania
(U2020/8305)

DEPUTY PRESIDENT BINET PERTH, 10 SEPTEMBER 2020

Application for an unfair dismissal remedy - failure to comply with Directions – application to dismiss pursuant to s.399A – application dismissed

[1] On 16 June 2020, Mr Thomas Bull (Mr Bull) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (Commission) alleging he was unfairly dismissed by Gourmet Chef Foods Pty Ltd T/A Gourmania (Gourmania).

[2] On 21 July 2020, the Parties participated in conciliation with a staff conciliator. The matter could not be resolved.

[3] Mr Bull’s Application was then allocated to my Chambers for determination.

[4] On 10 August 2020, the matter was scheduled for an in-person conciliation conference before myself. Mr Bull did not attend and was represented at the conference by a Paid Agent, Ms Amanda Both (Ms Both). The matter could not be resolved.

[5] On 11 August 2020, the parties were issued with directions which required Mr Bull to file and serve on Gourmania by 4pm Wednesday, 19 August 2020 submissions and evidence in relation to the merits of his application (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[6] On 20 August 2020 my Chambers emailed the Parties advising them that Mr Bull had failed to file any materials in accordance with the Directions.

[7] On 20 August 2020, my Chambers received email correspondence from Ms Both advising that Mr Bull had ceased communication with her.

[8] On 20 August 2020, my Chambers telephoned Mr Bull and left a voicemail requesting he call my Chambers back regarding the Application.
[9] On 21 August 2020, my Chambers contacted Ms Both via email asking her to confirm that she had instructions from Mr Bull to discontinue the application. To date there has been no response.

[10] On 26 August 2020, Gourmania filed with Chambers and served on Mr Bull an application for the Application to be dismissed pursuant to section 399A of the FW Act. Gourmania submitted that the Application should be dismissed on the grounds that Mr Bull unreasonably failed to comply with a direction of the Commission when he failed to file his materials in accordance with the Directions (Dismissal Application).

[11] On 26 August 2020, my Chambers attempted to contact Mr Bull by telephone and left a voicemail requesting he get in contact with my Chambers as a matter of urgency.

[12] On 27 August 2020, Mr Bull was invited to file submissions and evidence or other documentary material supporting those reasons as to why the Application should not be dismissed by 4pm on Friday 4 September 2020.

[13] On 27 August 2020, my Chambers again attempted to contact Mr Bull by telephone and left a voicemail requesting he get in contact with my Chambers.

[14] On 28 August 2020, Chambers sent a copy via express post to Mr Bull of the correspondence inviting him to file submissions in relation to the dismissal application, a copy of the Directions and a copy of the dismissal application. Confirmation of delivery to the address outlined by Mr Bull on his F2 Application form was confirmed to be 1 September 2020.

[15] On 4 September 2020, my Chambers again attempted to call Mr Bull, to no avail.

[16] 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.”

[17] Mr Bull failed to file the materials he was directed to file by the dates specified in the Directions or at all. Mr Bull failed to seek an extension to file his materials or provide evidence of the reasons for failing to do so. As at the date of this decision Mr Bull has still not filed any materials in support of his Application or in opposition to the Dismissal Application. I am satisfied that Mr Bull has unreasonably failed to comply with Directions of the Commission relating to this Application.

[18] On application of Gourmania and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect will be issued with this decision.

DEPUTY PRESIDENT

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