Tyson James v Bunnings Warehouse T/A Bunnings Warehouse

[2020] FWC 372

[2020] FWC 372

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tyson James
v
Bunnings Warehouse T/A Bunnings Warehouse
(U2019/13497)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 23 JANUARY 2020

Application for an unfair dismissal remedy – s 399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by Bunnings Group Limited T/A Bunnings Warehouse (Respondent) pursuant to s 399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by its former employee, Mr Tyson James, pursuant to s 394 of the Act (Application).

Background

[2] Mr James lodged his Application dated 3 December 2019 in the Fair Work Commission (Commission). In that Application, Mr James contends that he was unfairly dismissed on 3 December 2019.

[3] The parties did not participate in a conciliation conference. The matter was assigned to my chambers in January 2020.

[4] The matter was listed for a directions hearing, by telephone, on 20 January 2020. There was no appearance by or on behalf of Mr James at that directions hearing.

[5] An email in the following terms was sent to Mr James after the directions hearing on 20 January 2020:

“Dear Mr James

This matter was listed for directions by telephone before Deputy President Saunders at 9am this morning pursuant to a Notice of Listing sent to the parties on 15 January 2020 at 12:21pm.

There was no appearance by or on behalf of you, the applicant, at the directions hearing. The respondent participated in the directions hearing.

This matter is now listed for a further directions hearing (by telephone) on Thursday, 23 January 2020 at 1.30pm. It is necessary for both parties to participate in this directions hearing. If you do not participate in the directions hearing (by telephone) on Thursday, 23 January 2020 at 1.30pm, your unfair dismissal application may be dismissed without further prior notice to you.

A notice of listing providing details of how to call into the telephone hearing will be sent out shortly.

If you wish to discontinue your claim, please complete and return the attached notice of discontinuance as soon as possible, but by no later than 12pm (midday) on 23 January 2020.”

[6] Mr James did not respond to the email sent to him on 20 January 2020.

[7] There was no appearance by or on behalf of Mr James at the directions hearing on 23 January 2020. My Associate attempted, without success, to contact Mr James at the commencement of the directions hearing on 23 January 2020.

Application for dismissal

[8] During the directions hearing on 23 January 2020, the Respondent made an application pursuant to s 399A of the Act for the Application to be dismissed on the basis that Mr James had failed to attend the directions hearing on 20 January 2020 and the directions hearing on 23 January 2020.

[9] Section 399A of the Act provides as follows:

“(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 powers under subsection (1) on application by the employer.”

[10] The discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant’s conduct and whether such conduct was unreasonable in the circumstances. 1

[11] In light of the history of the proceedings outlined above, I am satisfied that:

•  Mr James has unreasonably failed to attend two hearings held by the Commission (on 20 and 23 January 2020) in relation to his Application; and

•  there has been an application by the employer in accordance with s 399A(2).

[12] In the circumstances, I exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Mr James’ unfair dismissal Application.

DEPUTY PRESIDENT

Appearances:

Mr Paredes and Mr Powers, HR Advisors of Bunnings Group Ltd, appeared for the respondent

Hearing details:

2020.

Newcastle:

23 January.

Printed by authority of the Commonwealth Government Printer

<PR716142>

 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]