Wayne Stuart v K2 Components

[2023] FWC 37

[2023] FWC 37

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Wayne Stuart
v

K2 Components

(U2022/10454)

COMMISSIONER PLATT ADELAIDE, 6 JANUARY 2023

Application for an unfair dismissal remedy – application to dismiss under s.399A – whether Applicant unreasonably failed to comply with Commission direction and attendance – application dismissed.

1. On 31 October 2022, Mr Wayne Stuart (the Applicant) lodged an application for unfair dismissal, pursuant to s.394 of the Fair Work Act 2009 (the Act) against K2 Components (the Respondent). 

1. The matter was listed for conciliation on 8 December 2022, but the Applicant failed to attend. Accordingly, the matter was allocated to my Chambers for determination.

1. A directions conference was listed for 20 December 2022. Despite multiple attempts by my Associate to contact the Applicant, the Applicant failed to attend the directions conference. I conducted the directions conference in the Applicant’s absence, at which the Respondent confirmed that it had two jurisdictional objections in relation to the application, the first being that the Applicant had not served the minimum employment period (MEP), the second being that the dismissal was a genuine redundancy

1. Later on 20 December 2022, I issued written directions for the filing of material in relation to the MEP jurisdictional objection raised by K2, requiring the Applicant to file materials by 4.00pm on Thursday, 5 January 2023. Paragraph 10 of the Directions contained the following warning:

“The Commissioner notes that the Applicant did not attend the directions conference on 20 December 2022. The Applicant should note that if he fails to comply with the directions above, the application may be dismissed without further notice.”

1. The Applicant failed to file his materials by the time stipulated in the directions. My Associate emailed Mr Stuart noting that if he did not file materials by 5.00pm on 5 January 2023, the matter would be listed for a non-compliance hearing. Mr Stuart again failed to provide any materials, so the matter was listed for a non-compliance hearing at 10.00am on 6 January 2023. The Applicant was advised that should he fail to comply with the directions and/or attend the non-compliance hearing, his application may be dismissed without further notice.

1. The Applicant failed to attend the non-compliance hearing. My Associate attempted to dial him into the hearing twice, sent him an email, and left a voice message noting that the hearing may proceed in his absence at 10.05am. Mr Burpee represented K2 at the non-compliance hearing, at which he made an application for me to dismiss the unfair dismissal application under s.399A of the Act.

Legislation

1. Section 399A of the Act provides as follows:

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 relation to the application; or

(c)   failed to discontinue the application after a settlement agreement has been concluded.

Note 1:  For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.

Consideration

1. The Commission has the discretion to dismiss an unfair dismissal application under s.399A of the Act on application by an employer, in circumstances where there has been an unreasonable failure to attend a conference or a hearing held by the Commission in relation to the application, or unreasonable non-compliance with directions of the Commission.

1. The Applicant failed to attend conference on both 20 December 2022 and 6 January 2023. The Applicant failed to file his material in compliance with my directions issued on 20 December 2022.

1. Accordingly, I am satisfied that ss.399A(1)(a) and 399A(1)(b) are enlivened.  It appears to me that the Applicant has failed to prosecute his case, and in those circumstances, it is an appropriate exercise of my discretion under s.399A of the Act to dismiss the unfair dismissal application. An Order[1] reflecting this decision will be issued simultaneously.

COMMISSIONER

Appearances:

No appearance from the Applicant.
D Burpee for the Respondent.

Hearing details:

2023.
Adelaide (by teleconference):
January 6.

[1] PR749440.

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