Tristan Hubbard v MGM Bulk Pty Ltd

[2023] FWC 1534

[2023] FWC 1534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tristan Hubbard
v

MGM Bulk Pty Ltd

(U2023/1661)

DEPUTY PRESIDENT O’KEEFFE PERTH, 26 JUNE 2023

Application for an unfair dismissal remedy - application dismissed pursuant to s.399A of the Act.

1. On 1 March 2023, Mr Tristan Hubbard (Applicant) made an application to the Fair Work Commission (FWC) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant submits that his employment had been terminated by the Respondent on 10 February 2023.

1. On 8 March 2023 the matter was listed for conciliation on 30 March 2023 (first conciliation).

1. The Applicant requested an adjournment of the first conciliation but this request was not granted.  Subsequently, the Applicant failed to attend the first conciliation. 

1. The FWC then sent the parties correspondence noting the non-attendance of the Applicant and inviting the parties to make a request for a subsequent conciliation.

1. The Applicant made such a request and the Respondent agreed to participate.  As such, the matter was listed for conciliation on 17 May 2023 (the second conciliation).  The matter was not able to be resolved at the second conciliation.

1. The matter was then allocated to my chambers, and a conference before me (the third conciliation) was listed for 6 June 2023.  Due to the unavailability of the Respondent’s representative, the Respondent requested an adjournment, which was granted, and the conference re-listed for 7 June 2023.  An amended notice of listing was sent to both parties.

1. On 7 June 2023 the Respondent and the representative of the Respondent attended the conference, but the Applicant failed to attend.

1. My Associate then made two phone calls to the phone number provided by the Applicant and sent him an email but received no response.

1. On 13 June 2023 the Respondent lodged with the FWC and served on the Applicant an application pursuant to s399A the Act to have the Applicant’s application dismissed.  I determined to deal with this matter on the papers.

1. On 14 June 2023, the FWC sent the Applicant an email which included another copy of the s399A application, directing the Applicant to provide in writing by 19 June 2023 his reasons for non-attendance at the first and third conciliation conferences.  In that email the Applicant was advised that if he failed to provide adequate reasons his application could be dismissed.

1. The Applicant did not respond to that email, nor a subsequent email sent on 21 June 2023.  All emails were sent to the Applicant were sent to his nominated email address.

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. The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the FWC to contact him and has provided no explanation to the FWC for his failure to attend, or his failure to comply with Directions of the FWC. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order[1] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

[1] PR763609

Printed by authority of the Commonwealth Government Printer

<PR763610>