Adam Cole v Modlec Pty Ltd [2023] FWC 3207

1 Fair Work Act 2009 s.394—Unfair dismissal Adam Cole v Modlec Pty Ltd (U2023/10136) COMMISSIONER MATHESON SYDNEY, 4 DECEMBER 2023 Application for an unfair dismissal remedy – s.399A – failure to attend conference or hearing held by the Commission [1] On 16 October 2023, Adam Cole (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) alleging unfair dismissal by his former employer Moldec Pty Ltd (Respondent) and seeking a remedy. Attempted staff conciliation [2] On 25 October 2023 the matter was listed for conciliation by a member of the Commission’s staff on 10 November 2023. The notice of listing was sent to the email provided by the Applicant in his application. [3] The Applicant did not attend the conference on 10 November 2023 and did not notify the Commission of their inability to attend. The Commission attempted to contact the Applicant via telephone and left three voicemail messages requesting that the Applicant contact the Commission. The Commission also sent an email requesting a call back. The Applicant did not respond or call back. [4] On 10 November 2023 following the Applicant’s failure to attend the conciliation conference scheduled for that day, the Commission sent correspondence to the Applicant seeking an explanation as to why the Applicant was unable to attend. The Applicant did not respond. Mention and directions hearing [5] The matter was allocated to my Chambers on 15 November 2023. On 16 November 2023 the matter was listed for a Mention and Directions hearing to be held on 22 November 2023. The Applicant did not attend the Mention and Directions hearing. The Commission attempted to contact the Applicant via telephone and left two voicemail messages requesting that the Applicant contact the Commission. The Applicant did not call back. [2023] FWC 3207 DECISION -- 1 of 5 -- [2023] FWC 3207 2 [6] During the Mention and Directions hearing on 22 November 2023 the Respondent made an application that the matter be dismissed given the Applicant’s non-attendance on two occasions at a conference or hearing held by the Commission and submitted that the non- attendance was unreasonable and caused inconvenience for the Respondent. To avoid further inconvenience, I decided to waive compliance with the Fair Work Rules 2013 (Rules) regarding the form of the s.399A application pursuant to s.586 of the Act and I accepted the oral application. [7] On 22 November 2023 the Commission wrote to the Applicant serving the s.399A application, seeking a response to it by 4pm on 29 November 2023 and informing the Applicant that if he did not provide an explanation by this time, the Commission may proceed to deal with the application on the material before it and this may result in the dismissal of the claim for unfair dismissal remedy. The Applicant did not respond to the Commission’s correspondence of 22 November 2023 or the s.399A application. Legislative framework [8] 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. 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.” [9] The Explanatory Memorandum to the Fair Work Act Amendment Bill 2012 (Cth) explains that: “161. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably: -- 2 of 5 -- [2023] FWC 3207 3 • failed to attend an FWC conference or hearing relating to the application; • failed to comply with an FWC direction or order relating to the application, or • failed to discontinue the application after a settlement agreement has been concluded. 162. The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42. 163. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where: • an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or • an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties. 164. Note 2 to new subsection 399A(1) draws the reader’s attention to the FWC’s capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant’s failure caused the other party to the matter to incur costs. 165. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer. 166. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC’s general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC’s power to dismiss an unfair dismissal application under new section 399A. 167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part.” Consideration [10] The Full Bench in Ian Kenneth Lockyear v Graeme Cox said:1 “[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following: -- 3 of 5 -- [2023] FWC 3207 4 1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. 14 Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application. 2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application. 3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy. 4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party. 5. A conference or hearing may be required where there are facts in dispute 15 and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application. [58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief.” [11] As noted earlier in this decision, the Respondent has made an application pursuant to s.399A of the Act. I decided to waive compliance with the Rules regarding the form of the s.399A application pursuant to s.586 of the Act and accepted the oral application. My Chambers has written to the Applicant serving the Application, setting out relevant provisions of the Act and seeking a response to it. It was explained to the Applicant in email correspondence that his unfair dismissal claim may be dismissed if he did not address the s.399A application. The Applicant did not respond to that correspondence and did not address the s.399A application. [12] I am satisfied that the relevant steps of the process outlined in Ian Kenneth Lockyear v Graeme Cox2 have been satisfied. The Applicant has failed to attend a conference and a hearing relating to his application without providing prior advice, has not provided reasons for non- attendance and has not responded to the s.399A application. [13] I find that the Applicant has unreasonably failed to attend a conference and hearing conducted by the Commission in relation to his application. [14] The Applicant’s application is dismissed pursuant to s.399A of the Act. An Order to this effect will be issued in conjunction with this decision. -- 4 of 5 -- [2023] FWC 3207 5 COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR768959> 1 [2021] FWCFB 875 at [57]. 2 [2021] FWCFB 875 at [57]. -- 5 of 5 --