Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed under ss 399A and 587

• [1] This decision concerns an application made by Bevchain Pty Limited under sections 399A and 587 of the Fair Work Act 2009 to dismiss Mr Mark Campbell's unfair dismissal application on the grounds that Mr Campbell has failed to attend conferences or comply with directions of the Fair Work Commission and has failed to prosecute his case.

• [2] I grant that application under sections 399A and 587 and dismiss Mr Campbell's unfair dismissal application. My reasons follow.

• [3] Mr Campbell has not attended a conference convened by the Commission. This was a case management conference on 30 August 2024 before me. My chambers emailed a Notice of Listing on 19 August 2024. My associated attempted to call Mr Campbell twice prior to the conference: the first half an hour before and the second five minutes before the conference was scheduled to start. On each occasion, my associate left a voicemail. My associate also sent emails informing Mr Campbell that the conference would proceed and that there were potential consequences of non-attendance, including the dismissal of his matter. Mr Campbell did not attend and did not respond to the voicemails or emails.

Failure to attend staff conciliation conference

• [4] Mr Campbell also did not attend a staff conciliation scheduled for 7 August 2024. A Notice of Listing for this conciliation was sent to Mr Campbell on 10 July 2024 and an SMS reminder via text message was sent the day before this listing. The conciliation started and Mr Campbell did not attend. The conciliator called Mr Campbell and left a voicemail seeking a callback. The conciliator also emailed Mr Campbell. Mr Campbell did not attend and did not respond to the voicemails or emails.
• [5] For the purposes of section 399A, a staff conciliation is not a conference of the Commission. This is because the Commission is defined in sections 12 and 575 to consist of the President, 2 Vice Presidents, Deputy Presidents, Commissioners and Expert Panel Members. The Commission does not include staff. I do not take the failure into account in relation to the application under section 399A, but it is relevant in relation to the application under section 587.

• [6] On 19 August 2024, I issued directions. Those directions required Mr Campbell to file and serve an outline of submissions, witness statements and document list, including all documents on that list, by Monday, 26 August 2024. Mr Campbell did not file any materials.

Bevchain applies under sections 399A and 587

• [7] Bevchain did attend the case management conference on 30 August 2024. Bevchain made an oral application for the Commission to dismiss Mr Campbell's application under sections 399A and 587. I waived requirements for formal compliance with the FW Act under section 586. I also informed Bevchain that I would provide Mr Campbell with an opportunity to explain himself and comply with directions, and to answer the application to dismiss.

• [8] My chambers emailed Mr Campbell shortly after the case management conference on 30 August 2024. We informed Mr Campbell that Bevchain had applied for his application to be dismissed, informed him of the grounds and his failures to attend conferences and comply with directions. We asked Mr Campbell to urgently contact us if he wished to continue his application. We also asked that he explain why he failed to attend conferences and comply with directions, and that he urgently file his materials.

• [9] We also informed him that if we did not hear from him by noon on Wednesday 4 September 2024, his application may be dismissed without further notice to him.

• [11] The Commission can dismiss a matter under section 399A, on application by a respondent, where an applicant has failed to attend conferences or comply with directions. The Commission can also dismiss an application under section 587 if an application is not made in accordance with the Act, it is frivolous or vexatious or if it has no reasonable prospects of success. But these grounds do not limit the Commission's power to dismiss an application, and the Commission can also dismiss an application where:

"an applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative."[1]

• [12] I am satisfied that Mr Campbell has failed to attend a conference and failed to comply with directions of the Commission. He has not provided any reasons, and I am therefore satisfied that his failures are unreasonable.

• [13] Mr Campbell has not replied to any attempted contact or correspondence of the Commission. He has neglected to participate in any aspect of his application beyond filing the initial Form F2. I am satisfied that Mr Campbell has failed to prosecute his application.

• [14] I therefore grant Bevchain's application under sections 399A and 587 to dismiss Mr Campbell's application.

• [15] For the above reasons, I order that the application for an unfair dismissal remedy under matter number U2024/7426 filed by Mr Mark Campbell on 28 June 2024 be dismissed under sections 399A and 587 of the Act.

[1] Viavattene v Health Care Australia [2013] FWCFB 2532 at [39].

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