Timothy Boyd v MDD Heavy Industries Pty Ltd

[2023] FWC 597

[2023] FWC 597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Timothy Boyd
v

MDD Heavy Industries Pty Ltd

(U2022/12009)

DEPUTY PRESIDENT LAKE BRISBANE, 13 MARCH 2023

Application for an unfair dismissal remedy – application for dismissal of application pursuant to s.399A – application dismissed.

1. Mr Timothy Boyd (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by MDD Heavy Industries Pty Ltd (the Respondent). Mr Jack Deller of the Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A(1)(a) of the Act.

Procedural background

1. On 9 February 2023, this matter was allocated to me.

1. On 20 February 2023, I issued the following Directions: a conference was listed for 11:00am on 2 March 2023. A hearing was listed for 10:00am on 6 April 2023. The Applicant was to file their submissions by 4:00pm on 7 March 2023, the Respondent was to file their submissions by 4:00pm on 21 March 2023, and the Applicant was to reply by 4:00pm on 28 March 2023.

1. On 2 March 2023 at 10:40am, my Chambers attempted to contact both parties to inform them that the conference was now beginning at 11:30am. The Applicant nor their representative answered. My Associate left a voice message with the Applicant informing him that the conference would begin at 11:30am.

1. At 11:38am, my Associate called the Applicant and their representative again to connect them to the conference and neither answered their telephones. My Associate left another voice message with the Applicant stating that we were unable to get in contact with their representative and the conference will proceed in their absence.

1. At 12:26pm, the Respondent filed their Form F1 requesting that the matter be dismissed pursuant to s.399A(1)(a) of the Act.

1. On 2 March 2023 at 2:52pm, my Chambers acknowledged receipt of the Form F1 and wrote to the parties.

“Dear parties,

Chambers acknowledges receipt of the Respondent’s Form F1 (attached) requesting dismissal of the application pursuant to s.399A of the Fair Work Act 2009.

Mr Boyd, the Deputy President is now considering dismissal of your application. If you wish to respond to the Respondent’s Form F1, you must file with the Commission and serve on the Respondent your response by 4:00 PM (QLD Time) on Friday, 3 March 2023.”

(Emphasis not added)

1. Since this direction, the Applicant has not communicated with the Commission.

The Respondent’s submissions

1. The Respondent in their Form F1 highlighted that the Applicant failed to comply with the Directions of the Commission by failing to attend the conference.

1. The Respondent sought that the matter be dismissed pursuant to s.399A(1)(a) of the Act.

Legislation

1. Section 399A of the 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.

(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.”

Consideration

1. The Applicant failed to engage with the Commission in a timely manner.

1. Since being allocated this matter, I have received no communication from the Applicant.

1. Despite Chambers attempting to communicate with the Applicant on 20 February 2023 and 2 March 2023, and allowing an additional ten days for the Applicant to contact Chambers, the Applicant has failed to engage with the Commission.

1. The failure to attend the conference and to provide reasons why he has not followed the Directions has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A(1)(a) of the Act.

1. The process undertaken has been in accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent as a Form F1, and a copy was served on the Applicant. The Applicant was provided time to provide a response to the application and was advised that a failure to do so may result in their application being dismissed.

Conclusion

1. I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed for failure to follow a Direction from the Commission. Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

[1] [2021] FWCFB 875, [57].

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