Travis Rigby v Agostini Concreting Contractors Pty Ltd

[2023] FWC 259

[2023] FWC 259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Travis Rigby
v

Agostini Concreting Contractors Pty Ltd

(U2022/10644)

DEPUTY PRESIDENT MASSON MELBOURNE, 31 JANUARY 2023

Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of Fair Work Act 2009.

1. On 4 November 2022, Mr Travis Rigby (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Agostini Concreting Contractors Pty Ltd (the Respondent) was unfair. The Respondent raised two jurisdictional objections, those being that the Applicant was not dismissed and in the alternative that he had not met with the minimum employment period (MEP).

1. The matter was listed for conciliation before a staff member of the Commission on 24 November 2022 but did not proceed as despite attempts to contact him, the Applicant failed to attend the telephone conciliation conference. The Applicant’s representative who did attend the conference also advised that they had not had any contact from the Applicant for a period of three weeks.

1. The matter was then allocated to my Chambers on 29 November 2022 following which, directions were issued to the parties by my Chambers on 30 November 2022 setting down a timetable for the filing of material by both parties.

1. The amended directions issued to the parties on 4 January 2023 relevantly included the following; 

“…………… 

SUBMISSIONS AND WITNESS STATEMENTS   

[3] The submissions must include all relevant facts, dates and incidents to support all claims made.

[4] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.

[5] Please note that witness statements are designed to take the place of evidence-in-chief.

………………………. 

NON-COMPLIANCE WITH THESE DIRECTIONS   

[8] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.

[9] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.

……………….” 

1. The Respondent filed its materials in relation to its jurisdictional objections in accordance with directions of the Commission. The Applicant then failed to file his material on or by close of business 19 January 2023 as required by amended directions issued on 4 January 2023. Correspondence was then sent by my Chambers to the Applicant on the morning of 23 January 2023 noting that he had failed to file his material as required by the directions and that unless this material was filed by close of business on 23 January 2023 a non-compliance hearing would be listed to which he would be required to attend. The Applicant did not respond to the email sent to him on 23 January 2023 or file any material.

1. The matter was then listed for an on-line non-compliance hearing at 4.00pm on 25 January 2023. Prior to commencement of the hearing my Associate attempted to call the Applicant twice. The Applicant did not answer or return the calls made by my Associate or attend the non-compliance hearing. The non-compliance hearing was attended by the Respondent’s Representative Mr Brady, Director A1 Workplace Agreements. Mr Brady made an oral application at the non-compliance hearing that the Applicant’s unfair dismissal application be dismissed pursuant to s.399A(1) of the Act.

1. Correspondence was sent by my Chambers on 25 January 2023 to the Applicant following the non-compliance hearing advising him that an application had been made by the Respondent pursuant to s.399A(2) of the Act that his application for an unfair dismissal remedy be dismissed pursuant to s.399A(1) of the Act. The Applicant was invited to provide submissions by close of business on Monday 30 January 2023 as to why his application should not be dismissed. The Applicant was also advised that should he seek to be heard in relation to the s.399A application he should advise my Chambers. Otherwise, the s.399A application would be dealt with on the papers. No submissions were filed by the Applicant in response to the correspondence sent to him on 25 January 2023.

Consideration 

1. 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. 

… 

(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.” 

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss his application for an unfair dismissal remedy by the close of business on Monday 30 January 2023, I will determine the application on the papers.

1. The Applicant has demonstrated a pattern of non-compliance with directions of the Commission by failing to attend the initially listed conciliation conference on 24 November 2022. He did not file his materials by 19 January 2023 as required by the directions then failed to attend the non-compliance hearing listed for 25 January 2023.

1. In the circumstances I have decided to grant the Respondent’s application under s.399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

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