Todd Dickinson v Wilby Constructions Pty Ltd T/A Wilby Constructions

[2014] FWC 1465

[2014] FWC 1465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Todd Dickinson
v
Wilby Constructions Pty Ltd T/A Wilby Constructions
(U2013/17602)

COMMISSIONER DEEGAN CANBERRA, 28 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 19 December 2013 Mr Todd Dickinson (the applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment with Wilby Constructions Pty Ltd trading as Wilby Constructions (the respondent).

[2] In his application the applicant claimed that his dismissal took effect on 29 November 2013 stating that he had been sent a text message to his phone which said ‘don’t worry about coming back to work’. In its Employer’s Response to the Unfair Dismissal Application (Form F3) the respondent stated that the dismissal took effect on 27 November 2013 and attached a screen shot of the text message exchange between the applicant and Mr Williams the owner of the respondent. That screen shot indicated that a message was sent by Mr Williams to the applicant at 12.31pm on 27 November 2013 which said ‘Don’t worry about coming back to work at all’.

[3] The matter was listed for a conciliation, to take place on 10 February 2014. The conciliation did not take place as the applicant was not able to be contacted on the telephone number provided.

[4] The matter was allocated to me and listed for a hearing to determine if the application was lodged out of time and, if so, whether further time for lodgement should be allowed in accordance with s.394(3) of the Act. A notice of listing identifying the relevant time and place for the hearing was sent to the parties on 19 February 2014.

[5] Attempts were made to contact the applicant on four separate occasions on 25 and 26 of February to confirm the applicant’s attendance at the hearing. The applicant’s phone was not answered so messages were left for him on each occasion requesting he contact the Fair Work Commission (the Commission) immediately. The applicant did not return the phone calls.

[6] The applicant failed to appear at the hearing on 26 February 2013. Mr Williams, owner of the respondent appeared at the hearing and made an application to have the substantive application dismissed pursuant to s.399A of the Act.

[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 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.

[8] As a consequence of the applicant’s unreasonable failure to attend the hearing on 26 February 2014, and in light of his failure to make any contact with the Commission since lodging his application, I have determined to dismiss the application pursuant to s.399A(1).

[9] The application is dismissed.

Appearances:

No appearance for the applicant

Mr Darren Williams for the respondent.

Hearing details:

2014.

Canberra:

26 February.

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