Victor Wright v Macleay Options Incorporated

[2020] FWC 5888

[2020] FWC 5888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Victor Wright
v
Macleay Options Incorporated
(U2020/11142)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 4 NOVEMBER 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 Macleay Options Incorporated (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 Victor Wright, pursuant to s 394 of the Act (Application).

Background

[2] Mr Wright lodged his Application in the Fair Work Commission (Commission) on 17 August 2020. In that Application, Mr Wright contends that he was unfairly dismissed on 16 July 2020.

[3] The matter was listed for a jurisdiction hearing in relation to the applicant’s application for an extension of time to file his Application and the respondent’s contention that he voluntarily resigned, by telephone, on 2 November 2020. There was no appearance by or on behalf of Mr Wright at that hearing.

[4] During the hearing on 2 November 2020, the Respondent made an application pursuant to s 399A of the Act for the Application to be dismissed on the basis that Mr Wright had failed to attend the hearing on 2 November 2020.

[5] An email in the following terms was sent to Mr Wright and the Respondent after the hearing on 2 November 2020:

“Dear Mr Wright

This matter was listed for a jurisdiction hearing by telephone before Deputy President Saunders at 9am this morning pursuant to a Notice of Listing sent to the parties on 22 September 2020 at 3:33pm. A reminder was sent to the parties at 12.12pm on 29 October 2020.

There was no appearance by or on behalf of you, the applicant, at the hearing.

The respondent (Macleay Options) has made an application for the Commission to dismiss your unfair dismissal application because of your failure to appear at the abovementioned hearing.

The Deputy President directs you to file and serve any submissions you wish to make to explain why your unfair dismissal application should not be dismissed because of your failure to appear at the hearing earlier today. You must file and serve any submissions you wish to make by 4pm, 3 November 2020 (tomorrow). If you do not respond by 4pm, Tuesday, 3 November 2020, your unfair dismissal application will be dismissed without further prior notice to you.

Yours sincerely”

[6] Mr Wright did not respond to that email.

Consideration of s 399A application

[7] 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.”

[8] 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

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

•  Mr Wright has unreasonably failed to attend a hearing held by the Commission (on 2 November 2020) in relation to his Application; and

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

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

DEPUTY PRESIDENT

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