Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - s.399A application to dismiss - application dismissed.

• [1] On 21 October 2024 Mr Grachan made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth), alleging that he had been unfairly dismissed from his employment with Poultry Enterprises. Mr Grachan seeks reinstatement to his former position and compensation.

• [2] Mr Grachan was employed by Poultry Enterprises as a chicken catcher. Mr Grachan was dismissed from his employment on 30 September 2024 following an episode in which Mr Grachan fell asleep on the back seat of a company vehicle returning to Sydney from the NSW Central Coast. Mr Grachan's co-workers could not wake Mr Grachan at the end of the journey and, after trying for 30 minutes, called an ambulance. Mr Grachan did not regain consciousness until ambulance officers attended the workplace. Mr Grachan apparently told the ambulance officers that he had taken drugs but refused to be specific about the drugs he had taken. Mr Grachan was dismissed because he did not comply with the employer's direction to take a drug test after the event.

• [3] Mr Grachan is representing himself in the proceedings.

• [4] The history of the progression of Mr Grachan's application is very unsatisfactory. On 13 December 2024 directions were made for the filing of evidence and submissions. Mr Grachan did not comply with those directions although he did eventually file evidence and an outline of submissions. The original hearing date of 13 February 2025 was vacated because Mr Grachan did not comply with the directions to file his evidence. The matter was listed for an interlocutory hearing on 21 February 2025 because Mr Grachan applied for an order for production of documents. Mr Grachan failed to attend the hearing and his application for an Order for Production was dismissed.

• [5] The matter was eventually re-listed for hearing on 17 March 2025. Mr Grachan did not attend the hearing and did not advise the Commission that he would not be attending.

• [6] Later in the day on 17 March 2025 Poultry Enterprises made an application under s.399A of the Fair Work Act 2009 (the Act) that Mr Grachan's application be dismissed.

• [7] Poultry Enterprises is blameless in relation to the procedural problems and is, quite understandably, frustrated and annoyed.

• [8] The stated grounds of Poultry Enterprises' application included the following:

"1. The applicant (Mr Grachan) failed to attend the hearing in the matter (U2024/125055) scheduled for 17 March 2025, the applicant did not contact or provide the FWC with a valid reason for the non attendance, further all attempts by the FWC to contact the applicant were not responded to by the applicant.

2. The applicant has previously failed to attend to a telephone directions hearing that was listed for 21 February 2025 to determine an application made by Mr Grachan for an order of production. The application was subsequently rejected.

3. The applicant Mr Grachan, did not file further evidence or submissions in relation to the respondents submissions that were filed on 27 February 2025.

We would also like to remind the Commission of the applicants general tardiness in dealing with the commission during this matter which we believe shows a clear lack of respect for the process and the FWC."

• [9] Given the unsatisfactory history of the proceedings, which have only been summarised above, and given Mr Grachan's failure to notify the Commission in advance of his absence at the hearing, Mr Grachan's case could only survive Poultry Enterprises' s.399A dismissal application if Mr Grachan had an exceptionally convincing explanation for his failure to attend the rescheduled hearing.

• [10] Several days after the scheduled hearing Mr Grachan provided the following explanation for his absence:

"I wish to reject/ deny/ protest the application made to dismiss matter ( u2024/12505)

Submission, on the 16th of March ( 5.50pm) I was arrested by police on an outstanding warrant from 2021.

I was refused police bail, remanded in custody to appear parramatta local court Monday 17-march-2025 @ 9.30am.

I was released from corrective services nsw 17-march-2025 @ 3. 45 pm .

Please find the attached documents supporting my submissions ...."

• [11] Mr Grachan provided supporting documentation being two photographs of two single pages from documents relating to his criminal proceedings:

(a) A single page from a Court Attendance Notice that indicates that Mr Grachan was apprehended at 5:50pm on Sunday 16 March 2025 and was required to attend Parramatta Local Court on Monday 17 March 2025 at 9:30am; and

(b) A single page from a document entitled "Reason for Bail Decision By Police Officer" indicating that Police Bail was refused at or around 9:30pm on Sunday 16 March 2025.

• [12] These documents do not establish that Mr Grachan was released on 17 March 2025 but nonetheless do explain why Mr Grachan did not attend the scheduled hearing at 10:00am on 17 March 2025.

• [13] Poultry Enterprises' submission in response included the following:

".... Again in light of the applicants continued tardiness in this matter, he has made no attempt to contact the FWC on his release on Monday and waited until 5.58pm on Thursday 20 March to make contact. He has again demonstrated his lack of respect to the Commission which he has demonstrated throughout this entire drawn out matter.

As the Deputy President is aware, the respondent attended the FWC on Monday fully prepared to run their case, including having a witness available via team's who is currently on leave in India and my colleague Mr Robson in the Commission on crutches after recent surgery is a testament to our respect for due process, with the matter not proceeding when scheduled it has caused considerable cost and inconvenience for the respondent.

I respectfully request the Commission accept the respondent's application and submissions and dismiss this matter..."

• [14] Section 399A of the FW Act provides:

(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 power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application."

• [15] In Lockyear v Graeme Cox [2021] FWCFB 875 at [57] the Full Bench found:

"[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:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. 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.

1. 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.

1. 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.

1. 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.

1. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application."

• [16] In this matter there are no facts in dispute that require me to conduct a hearing (per s.397).

• [17] Section 399A(2) is obviously satisfied by Poultry Enterprises' application.

• [18] Mr Grachan failed to attend a hearing held by the Commission (per s.399A(1)(a)) however the power to dismiss an application is only available if Mr Grachan has "unreasonably" failed to attend a hearing.

• [19] The assessment of the reasonableness of Mr Grachan's conduct should be undertaken in the context that the Commission is a specialist employment tribunal in which parties will appear on their own behalf in the usual course. The Commission is required to conduct itself in a manner that is fair and just, quick, informal and avoids unnecessary technicalities (s.577). In this context the Commission must be flexible in dealing with self-represented parties and must recognise that litigation is a foreign and daunting process for most people.

• [20] It is well recognised that the power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant's right to have their application heard and determined according to law before they have had their 'day in court' (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

• [21] The unfair dismissal provisions in the Act are intended to ensure that a "fair go all round" is accorded to both employers and employees (see s.381(2)). I am deeply sympathetic to Poultry Enterprises' plight in this matter. Over several months Poultry Enterprises has suffered significant inconvenience because Mr Grachan has not efficiently and productively pursued his unfair dismissal claim.

• [22] If Mr Grachan had provided no explanation for his failure to attend the hearing, or even a poor or moderately plausible explanation, I would most likely find that the failure to attend the hearing was unreasonable. The Commission needs to be realistic and balanced in providing a fair go all round.

• [23] What cannot be avoided in this matter is that Mr Grachan's absence was beyond his control and in the circumstances not unreasonable. It cannot be said in this case that the interests of justice require the application to be dismissed.

• [24] Mr Grachan does not explain why he took four days to advise the Commission of the reason for his absence, nor did Mr Grachan apologise to Poultry Enterprises or the Commission for the inconvenience caused. I am prepared to give Mr Grachan the benefit of the doubt and assume (despite him not saying either way) that he was not able to contact the Commission after his arrest and prior to the hearing.

• [25] As such Poultry Enterprises' application under s.399A is dismissed. Mr Grachan's application will be listed for a [third] hearing date as soon as possible.

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