s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Application for an unfair dismissal remedy - s.399A application - Failure to comply with directions and attend conference or hearing - Application dismissed.

• [1] This decision concerns an application made under s.399A of the Fair Work Act 2009 (the Act) by Woolworths Group Limited (the Respondent) to dismiss an unfair dismissal application brought against it by Mr James (Jimmy) Kalkhoven (the Applicant).

• [2] For the reasons that follow, the Respondent's application under s.399A is granted, and Mr Kalkhoven's application for an unfair dismissal remedy is dismissed.

• [3] On 19 December 2024, Mr Kalkhoven made an application to the Fair Work Commission under s.394 of the Act for a remedy, alleging that he had been unfairly dismissed from his employment with the Respondent. On 14 January 2024, the Respondent filed its response.

• [4] The matter was listed for staff conciliation on 24 January 2025. The conciliation did not take place as the Applicant did not attend and was not able to be contacted by the conciliator. The Applicant subsequently emailed the Commission on 27 January seeking another conciliation listing and proving updated contact details. This matter was allocated to my Chambers on 12 February 2025.

• [5] On 20 February 2025, the matter was listed for Case Management Conference on 25 February 2025 by Microsoft Teams and directions were issued by email for the filing and service of outlines of argument and witness statements. The directions also required the parties to confirm their attendance prior to the conference by sending an email to Chambers. On 20 February 2025, an SMS was also sent to the parties which indicated the matter had been listed for Case Management Conference and directions had been issued for the filing and service of evidence and submissions. On 24 February 2025 Chambers called the Applicant as confirmation of attendance at the Case Management Conference had not yet been received. The Applicant was not able to be reached so a voicemail was left and a follow up text message was sent.

• [6] Ms Rosalind Loxton appeared on behalf of the Respondent at the Case Management Hearing at 9.30 am on 25 February 2025. Mr Kalkhoven failed to appear at the commencement of the listing, and it was stood down for a period of 15 minutes, during which time my Chambers attempted to contact Mr Kalkhoven without success by telephone call, email and SMS message. At 9:45am the Directions Hearing commenced in the Applicants absence. I was unable to progress the case management of the application in the Applicant's absence but indicated that all Directions and Notices of Listing issued in this matter remained unchanged.

• [7] On 5 March 2025, my Chambers circulated an email to the parties indicating that tThe Directions which required the Applicant to file any evidence and an outline of submissions by 6 March 2025 remained on foot and Mr Kalkhoven was expected to comply with them. Mr Kalkhoven failed to comply with this Direction. On 11 March 2025 Chambers sent a further email to the parties requesting that the Applicant file his material by 1:00pm on 12 March 2025. This email also advised that should the Applicant fail to file material in support of their application and/or engage with the Commission that:

(a) The Deputy President may elect to determine the application on the basis of the material filed by the Respondent only; or,

(b) In the alternative, the Respondent may make an application pursuant to s.399A of the Act that the Deputy President exercise her discretion to dismiss the matter.

• [8] The Applicant did not file any further material.

• [9] On 17 March 2025, the Respondent made an application that these proceedings be dismissed, copying in Mr Kalkhoven. This application was made in a Form F1 and accompanying Annexure which identified that it relied on s399A(1)(a) and (b) of the Act.

• [10] On 18 March 2025 Chambers sent an email to the parties requesting that the Applicant file a response to the s.399A Application by 20 March 2025. This email also informed the parties that if no response was received than the application for dismissal would be determined on the papers.

• [11] Mr Kalkhoven did not provide a response to the s.399A Application.

• [12] 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:
   1. failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
   2. failed to comply with a direction or order of the FWC relating to the application; or
   3. failed to discontinue the application after a settlement agreement has been concluded.

1. The FWC may exercise its power under subsection (1) on application by the employer.
2. This section does not limit when the FWC may dismiss an application.

• [13] Section 587 of the Act provides as follows:

1. Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
   1. the application is not made in accordance with this Act; or
   2. the application is frivolous or vexatious; or
   3. the application has no reasonable prospects of success.

• [14] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

• [15] As Mr Kalkhoven did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

Consideration of s.399A(1)(a) and (b)

• [16] The Respondent's application relies on Mr Kalkhoven's non-attendance at the Case Management Conference on 25 February 2025 and a failure to comply with directions made by the Commission.

• [17] I consider that Mr Kalkhoven did unreasonably fail to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application. Mr Kalkhoven failed to attend on 25 February 2025. He was contacted by my Chambers prior to the listing and during the listing using many varied means including email, phone call and text message. He was then sent a follow up email following the failure to attend the hearing and provided a further opportunity to file his material after the Directions had elapsed, which he elected not to avail himself of. No contact or response was made to my Chambers regarding his failure to attend or his failure to file any material on which he intended to rely in support of his application. In the circumstances I am satisfied that he unreasonably failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application.

• [18] I will now turn to consider the respondent's application to dismiss the substantive application on the basis of s.399A(1)(b).

• [19] In Lockyear v Cox,2 a Full Bench considered s.399A and stated as follows:3

In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

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.

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.

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.

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.

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.

• [20] Mr Kalkhoven was appropriately informed of the application to dismiss these proceedings on the day it was made by the Respondent, being 17 March 2025. Mr Kalkhoven has been given adequate opportunity to respond to the application, and the correspondence from the Commission clearly identified that the Commission would proceed to determine the application to dismiss these proceedings in the absence of a response from him. I am satisfied that the first three steps as set out in Lockyear v Cox4 have been met, and that the final two steps are not relevant in the present circumstances given that Mr Kalkohoven has not filed any material and accordingly no facts are disputed.

• [21] I note that Mr Kalkhoven has not filed any response to, nor made any contact with the Commission concerning, the Respondent's application to dismiss his application for an unfair dismissal remedy.

• [22] Mr Kalkhoven was specifically directed to file witness statements and an outline of submissions in support of his unfair dismissal application. He did not file anything. I find that he did not comply with the Directions. I conclude that Mr Kalkhoven has not provided a reasonable explanation for failing to comply with Directions to file material intended to be relied upon in the determination of the substantive application. I am satisfied, for the purposes of s.399A(1)(b) of the Act, that Mr Kalkhoven's failure to comply with the Directions issued was unreasonable.

• [23] In the circumstances described above at [7] to [11] and [16] to [22], I am empowered to exercise the discretion pursuant to s.399A of the Act to dismiss the substantive unfair dismissal application. While this discretion is to be exercised with caution,5 I am satisfied that it should be exercised given that:

(a) The Applicant has unreasonably failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application;

(b) The Applicant has unreasonably failed to comply with Directions issued by the Commission;

(c) The Commission has afforded the Applicant an adequate opportunity to respond to the s.399A application or otherwise engage with the Commission about his substantive unfair dismissal application; and,

(d) The Applicant has been on notice of the consequences of his non-compliance with the substantive Directions as well as the failure to engage with the Commission concerning the application to dismiss these proceedings.

• [24] For the reasons given, the Respondent's application under s.399A is granted.

• [25] The Applicant's application for an unfair dismissal remedy is dismissed pursuant to s.399A(1) of the Act. An Order to this effect will be issued with this decision.[1]

[1] PR785462.

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