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

(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

Printed by authority of the Commonwealth Government Printer

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

The case of Victor Wright v Macleay Options Incorporated concerned an application for an unfair dismissal remedy. The applicant, Mr Wright, sought relief under section 399A of the Fair Work Act 2009, alleging unfair dismissal. The respondent, Macleay Options Incorporated, contested the claim and sought to dismiss the application. The Federal Circuit and Family Court of Australia was tasked with resolving the dispute.

The primary legal issue before the court was whether Mr Wright's dismissal was unfair within the meaning of the Fair Work Act. This required consideration of the legitimacy of the dismissal and whether the prescribed procedural requirements were adhered to. Additionally, the court had to determine whether any of the provisions of section 387 of the Act applied to provide a defence for the respondent's actions.

In its judgment, the court found that the dismissal was not unfair. The respondent had followed the necessary procedural steps and provided adequate reasons for the dismissal, which were supported by the evidence presented. The court concluded that the respondent had not acted unreasonably or capriciously and that the dismissal was therefore justified. Consequently, the application for an unfair dismissal remedy was dismissed. The court's decision was based on a detailed examination of the evidence and the legal framework provided by the Fair Work Act.

The final orders of the court were that the application for an unfair dismissal remedy be dismissed, with no orders as to costs. The court did not award any costs to either party, reflecting the complexity of the issues and the importance of the procedural fairness in employment terminations.

Victor Wright v Macleay Options Incorporated

DECISION

Background

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established