Adam Hallam v Milburn Lake Pty. Ltd. [2024] FWC 2537

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Adam Hallam v Milburn Lake Pty. Ltd. (U2024/6657) COMMISSIONER PERICA MELBOURNE, 17 SEPTEMBER 2024 Application for unfair dismissal remedy [1] On 11 June 2024, Mr. Adam Hallam commenced a proceeding for an unfair dismissal remedy against Milburn Lake Pty Ltd (Milburn). Procedural History [2] On 17 June 2024, a notice of listing was sent to the parties for a conciliation before a Fair Work Commission conciliator which was listed for 2:15 PM on 16 July 2024 by Microsoft Teams. [3] On 15 July 2024, the day before the conciliation, Mr. Hallam sent two emails to the Commission stating he had “started a new job and won’t be home until 7 PM if you would like the change the appointment until that time that would be great thanks”. [4] On 16 July 2024, a notice of listing was sent to the parties for a conciliation before a Fair Work Commission conciliator which was to take place by Microsoft Teams at 23 July 2024 at 2:15 PM. Mr. Hallam did not attend that conciliation and did not respond to telephone messages from the Commission on that date. [5] The matter was allocated to my Chambers and on 1 August 2024, a notice of listing for a case management mention hearing was issued for a hearing by Microsoft Teams at 11.00 AM on 13 August 2024. [6] On 5 August 2024, Mr. Hallam responded to the notice of listing by an email to my Chambers in which he stated, “I work between 6 AM and 6 PM and I don’t have a phone service so that appointment at 11:00 AM but that doesn’t make sense to me and I will be unavailable”. [7] On 6 August 2024, my Chambers again sent an e-mail which explained the process of an unfair dismissal proceeding. The last paragraph of that e-mail stated “Failure to comply with the directions may place your application at risk of being dismissed under s 399A…” [2024] FWC 2537 DECISION -- 1 of 4 -- 2 [2024] FWC 2537 [8] On 13 August 2024, the mentioning hearing occurred. Ms Pinnuck of Milburn together with Mr. Milne of Kingston Reid attended, Mr. Hallam did not. Following the mention hearing, directions were issued for the conduct of the proceeding. [9] At 7:37 PM on the evening of 13 August 2024, Mr. Hallam sent a further e-mail which stated “I’ve said many times that I work from 6AM to 6PM Monday to Friday and in those times I don’t have a phone service”. [10] On 14 August 2024, a further e-mail was sent by my Chambers to Mr. Hallam explaining that the Commission sits between 10:00 AM and 4:00 PM and that should he not comply with directions of the Commission, he would be risking his application being dismissed. [11] On 14 August 2024, Mr. Hallam responded by e-mail again stating, "Sorry if you are not understanding I said my working hours many of times with no phone service”. [12] The 13 August 2024 directions issued by the Commission in this matter required Mr. Hallam to file and serve his submissions, witness statements and other matters on which he relied by 27 August 2024. Mr. Hallam did not comply with that deadline. [13] On 28 August 2024, Kingston Reid, the solicitors for Milburn, made an application under s 399A of the Act that the Commission should dismiss Mr. Hallam’s application for want of prosecution by reason of his serial failure to attend conferences, hearings or meet directions of the Commission. [14] A notice of listing was sent to the parties for a show cause hearing on why the application should not be dismissed for want of prosecution to be heard on 30 August 2024 at 2:00 PM by Microsoft Teams. [15] On 30 August 2024, shortly before the show cause hearing, my Chambers contacted Mr. Hallam by telephone. When asked if he could attend, he informed my Chambers “I am driving. I am heading into traffic driving to Shepparton” and declined to participate. Ms. Madeleine Pinnuck of Milburn attended the show cause together with their lawyer, Mr. Brendan Milne of Kingston Reid. Relevant Law [16] Section 399A of the Act provides: 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 of 4 -- [2024] FWC 2537 3 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 [17] Since filing the application, Mr. Hallam has failed to attend any listed conciliation conference or hearing in this matter. He has not met any direction made by the Commission. He has corresponded with the Commission indicating he would be unavailable to attend because of his working hours. His unavailability during the hours from six to six do not release him from his obligation to comply with directions of the Commission or to otherwise prosecute his application. [18] It is difficult to understand how Mr. Hallam believed the Commission would deal with this matter in his absence. The Commission is not a twenty-four-hour convenience store; it does not list unfair dismissal proceedings between 10:00 PM and 2:00 AM for the convenience of the parties. [19] The Fair Work Commission is an administrative tribunal that applies the Fair Work Act 2009. An applicant to an unfair dismissal proceeding has the onus of proving the dismissal was unfair and is expected to comply with directions and prosecute their case. [20] The only engagement of the Applicant in this matter is to say he was unavailable. That is not enough to give the Commission confidence that he will take steps to prosecute a proceeding that he himself brought. It is expected that if the applicant regarded the circumstances of his dismissal justified commencing a legal proceeding it would be given some priority. In this case, it is apparent he did not. [21] In those circumstances, the conduct of Mr. Hallam demonstrates that he unreasonably failed to comply with directions and to attend conciliation conferences, or hearings in the matter. In those circumstances I dismiss his application for want of prosecution under s 399A(1).1 COMMISSIONER -- 3 of 4 -- 4 [2024] FWC 2537 Printed by authority of the Commonwealth Government Printer <PR779319> 1 PR779320. -- 4 of 4 --