Timothy Jarick v TTQ Holdings Pty Ltd
[2022] FWC 1212
•17 MAY 2022
| [2022] FWC 1212 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Timothy Jarick
v
TTQ HOLDINGS PTY LTD
(C2022/760)
| DEPUTY PRESIDENT LAKE | BRISBANE, 17 MAY 2022 |
Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed.
Mr Timothy Jarick (the Applicant) lodged an Application (Application) pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) alleging that he was dismissed by TTQ Holdings Pty Ltd (the Respondent) in contravention of the Act’s general protections provisions. The Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act
Legislation
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.”
Procedural background
This matter was listed for a staff conciliation on 23 February 2022 by telephone to see if the matter could be resolved between the parties. This was then adjourned to 21 March 2022, which was then cancelled.
On 23 February 2022, the Respondent filed a Form F8A Employer Response form and raised a jurisdictional objection. Specifically, that the Applicant had filed their Form F8 General Protections Application 2 days late. The Respondent requested the jurisdictional objection be heard.
On 28 February 2022, the matter was allocated to my Chambers for determination of the jurisdictional objections. A notice of listing and directions were sent from my Chambers on 30 March 2022 setting out dates by which the parties were to provide material in respect of the application and listing the matter for, inter alia, a Mention/Directions and Conference before me on 20 April 2022 at 14:00pm.
On 19 April 2022 at 14:03pm, the Respondent wrote to my Chambers stating,
“In relation to the hearing scheduled for tomorrow, we did not receive any material from the applicant by the deadline set.
Are we to presume that the hearing will be cancelled or will it be rescheduled?
Thanks.”
On 20 April 2022 at 11:00am, my Chambers wrote to the Parties stating,
“Dear Mr Jarick,
We attempted to call you but your phone was switched off.
Contrary to the Deputy President’s directions, no material has been filed. You will be required to explain why you have failed to meet his directions.
Given your non-compliance with the directions, do you intend on discontinuing the matter?
We will be unable to provide a change of date for the Hearing listed today at 2PM.”
On 20 April 2022 at 13:45pm, my associate attempted to call the Applicant four times on two different mobile numbers but both numbers were switched off. The Respondent was then called to standby until 14:15pm to wait and see if the Applicant would attend. The Applicant failed to attend, and the hearing was adjourned.
On 21 April 2022 at 9:13am, my Chambers wrote to the Parties in the following terms:
“Dear Parties,
Chambers refers to the Directions that were issued to the Parties on 30 March 2022.
Mr Jarick failed to comply with the Directions by the date specified in those Directions.
In accordance with paragraph [4] of the Directions, Mr Jarick was required to file his submissions in the FWC, and serve on TTQ Holdings Pty Ltd, by 4pm on Wednesday 6 April 2022, this was not done.
Furthermore, he did not attend the conference on Wednesday 21 April. Numerous attempts were made to contact him.
Section 399A of the FW 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.”
Please note that the Commission cannot dismiss an application pursuant to section 399A unless the employer makes an application for the Commission to do so. If TTQ Holdings Pty Ltd wishes to make an application pursuant to section 399A to have the Application dismissed on the grounds that Mr Jarick failed to comply with a direction of the Commission, TTQ Holdings Pty Ltd may do so using a Form F1 Application (no specific form provided) attached. A copy of the section 399A application and any supporting documentation should be forwarded to the Commission and copied to Mr Jarick by 4pm (AEST) Friday 22 April.
Mr Jarick, if you do not intend to proceed with the Application you should complete the attached Notice of Discontinuance and forward it to Chambers by 4pm (AEST) Friday 22 April.”
On 19 April 2022, the Respondent provided the requested information by email and copied in the Applicant into the correspondence.
Consideration
The Applicant has failed to discontinue his application. He had been provided with ample opportunity to provide an explanation for his absence but has not done so. The failure to comply with directions has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A of the Act.
The process undertaken has been 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 with an opportunity to respond to the application and advised that a failure to do so may result in his application being dismissed.
I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed. Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
<PR741727>
[1] [2021] FWCFB 875 [57].
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