24 Sep Unfair Dismissal: Dismissing Applications Under Section 399A
The Fair Work Commission (FWC) has a general power power to dismiss an unfair dismissal application on its own motion or upon an application under section 587 of the Fair Work Act 2009 (Cth) (Act). However, the FWC can also dismiss an application for an unfair dismissal remedy following an application by an employer under section 399A of the Act.
Unfair Dismissal Remedies and Section 399A
Section 399A of the 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.
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.”
Division 4 of Part 3-2 of the Act deals with remedies for unfair dismissal applications.
A common situation where an application under section 399A of the Act is made occurs where an applicant fails to attend a conciliation conference conducted by the FWC and attempts to communicate with the applicant by the FWC are unsuccessful. By way of example, in the case of Rachael Morris v RAW Sunshine Coast Pty Ltd [2023] FWC 2069:
1. Ms Morris made an application on 2 June 2023 for a remedy under section 394 of the Act, alleging she had been unfairly dismissed by Raw Sunshine Coast Pty Ltd (Raw).
2. Ms Morris did not attend a conciliation conference with a Commission staff member listed on 6 July 2023, nor did she attend a Mention/Direction listed before a FWC Commissioner on 14 August 2023.
3. Following the Mention/Direction listed on 14 August 2023, RAW made an application under section 399A of the Act.
General Principles and the Lockyear v Graeme Cox [2021] FWCFB 875
In the case of Lockyear v Graeme Cox [2021] FWCFB 875 (Lockyear), the FWC Full Bench provided relevant principles for the FWC to consider where there has been an application under section 399A of the Act.
The principles set out by the FWC Full Benchfor the process that should be observed before the FWC considers dismissing an application under section 399A(1) of the Act are as follows:
“1. An application under s.399A must be made by a party in accordance with the [Fair Work Commission Rules 2013] 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 [Fair Work Commission Rules 2013] 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 and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”
Conclusion
Section 399A of the Act provides a remedy for employers where an applicant has failed to attend a conference or comply with orders or a settlement agreement. This is a provision of the Act that applicant’s should be aware of and consider during the unfair dismissal process and that can provide employers with alleviation in certain situations.
See more articles on unfair dismissal at our page here.
Written by Angus Macpherson.
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