1 Fair Work Act 2009 s.394—Unfair dismissal Edward Morris v Megadeck Australia Pty Ltd (U2023/8675) DEPUTY PRESIDENT SLEVIN SYDNEY, 29 JANUARY 2024 Application for an unfair dismissal remedy – s.399A application to dismiss – application to dismiss granted [1] Mr Edward Morris has applied for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (the Act). Mr Morris alleges that he was unfairly dismissed from his employment with Megadeck Australia Pty Ltd (Megadeck). [2] Megadeck opposed the application. Mr Morris failed to attend a staff conciliation conference held on 16 October 2023. He also failed to attend a Directions hearing held on 22 November 2023. He also failed to comply with Directions issued to facilitate a hearing of his matter. Megadeck applies, pursuant to s.399A of the FW Act, for Mr Morris’ application to be dismissed. For the following reasons I dismiss application. Background [3] Mr Morris’ application for an unfair dismissal remedy was lodged using the online filing service on 12 September 2023. On 13 October 2023, Megadeck filed its response to the application. The application and response indicated that the matter involved contested facts about Mr Morris’ conduct and performance at work. In its response Megadeck raised the jurisdictional objection that Mr Morris earned more than the high income threshold ($167, 00 for dismissals after 1 July 2023). [4] The application was listed for a staff conciliation conference on 16 October 2023. No reason was given for Mr Morris’ failure to attend. The conciliator telephoned and wrote to Mr Morris on that day advising him the conciliator had attempted to speak with him, but was unable to do so. The Conciliator also telephoned Mr Morris asking for his availability to attend a further conciliation conference. No response was received. [5] On 20 October 2023 the Commission wrote to Mr Morris stating the matter would be referred to a member of the Commission for arbitration. The letter notified Mr Morris that a date for arbitration would be set and that directions would be issued for the preparation, lodging, and serving of documents in support of his case. [2024] FWC 232 DECISION [2024] FWC 232 2 [6] On 20 October 2023 the matter was allocated to Vice President Catanzariti’s Chambers. On 9 November 2023 a letter was sent to both parties and asked Mr Morris to respond to the jurisdictional objection raised by Megadeck alleging that he earned more than the high income threshold. If Mr Morris agreed with Megadeck he was asked to withdraw the application on the basis he was not protected from unfair dismissal and if he disagreed he was asked to provide a statement explaining why he said this. On 9 November 2023 Mr Morris replied that he earned less than the alleged amount that Megadeck claimed. [7] On 10 November 2023 the matter was allocated to my Chambers for arbitration. Directions were issued to the parties on 16 November 2023 and the matter was listed for a Directions hearing on 22 November 2023. Mr Morris did not attend. My Chambers telephoned and attempted to speak with Mr Morris however Mr Morris did not answer. Directions were formulated in Mr Morris’ absence and were provided to both parties by email on the same day. Mr Morris was asked in the covering email if he intended to proceed with the application. No response was received to this email. [8] The first direction was that Megadeck file with the Commission, and provide to the Respondent, any witness statements, documents, and submissions it intends to rely on in relation to the jurisdictional objection that the Applicant earned more than the high income threshold. [9] On 8 December 2023 Mr Morris was due to file his material in response to the jurisdictional objection raised by Megadeck. Nothing was filed. On 11 December 2023 Megadeck wrote to my Chambers noting that the Applicant was due to file his material on 8 December 2023 and in light of not receiving any material they requested that the matter be heard on the papers. [10] On 12 December 2023 my Chambers telephoned Mr Morris and left a voicemail message inviting Mr Morris to return the call. My Chambers reminded Mr Morris that his unfair dismissal matter before the Fair Work Commission was listed for Hearing that morning and asked whether he planned to attend. No response was received. My Chambers also wrote to Mr Morris confirming it had not been able to reach him via telephone and asked Mr Morris to advise whether he wished to proceed with his application. My Chambers wrote to parties advising that the matter would remain listed for Hearing at 10:00 AM in Sydney. [11] Megadeck attended the Hearing however it could not take place as Mr Morris failed to attend. On 12 December 2023 Megadeck made an application for the matter to be dismissed in accordance with s.399A of the Act. [12] After the Hearing could not take place, on 12 December 2023, my Chambers wrote to parties noting that the Applicant failed to attend and that the Hearing was adjourned. Mr Morris was asked to explain the reasons for his non-attendance and advise as soon as possible and by close of business on Wednesday, 13 December 2023 whether he wishes to proceed with the application. Mr Morris responded with a brief email along the following terms: “My sincere apologies as I have not had access to my phone for a matter of weeks now . . . Thanks for your attempts to assist me here but money wins over fairness as I have witnessed here and those who fight that, just suffer further.” [2024] FWC 232 3 [13] The next day on 13 December 2023, Mr Morris sent what appears to be the same email. My Chambers wrote to Mr Morris on 15 December 2023 asking Mr Morris to advise by 18 December 2023 whether he wished to continue with his application and that if he did not wish to continue, he could reply by return email. Nothing further was received. [14] On 15 December 2023 Megadeck wrote to my Chambers again attaching the Form F1 which was sent earlier on 12 December 2023. [15] On 19 December 2023 Directions were issued requiring Mr Morris to file and serve any material in response to the application to dismiss his application. Mr Morris was asked to provide a response by 22 December 2023. Nothing was provided. Megadeck wrote to Chambers on 8 January 2024 noting that as Mr Morris failed to provide any material Megadeck did not wish to file any material in reply. Megadeck also indicated it had no objections to the matter being determined on the current material filed before the Commission. Consideration [16] Section 399A relevantly gives the Commission a discretion to dismiss an application for an unfair dismissal remedy if satisfied that an applicant has unreasonably failed to attend a conference or hearing in relation to the application or has failed to comply with a direction or order of the Commission relating to the application. [17] Mr Morris unreasonably failed to; attend the conciliation conference on 16 October 2023, attend the Directions hearing on 22 November 2023, comply with the Directions of 22 November 2023, attend the Hearing on 12 December 2023 and comply with the Directions of 19 December 2023. The first three failures and the failure to comply with the Directions on 19 December 2023 were unreasonable as Mr Morris failed to provide an explanation for his non- attendance and non-compliance and failed to respond to requests to provide dates on which he would be available to attend or reasons for the failure to provide material. As to the failure to attend the Hearing on 12 December 2023, Mr Morris’ response provided some explanation for his failure to attend by informing the Commission and Megadeck of his recent personal ill health and difficulties securing legal representation. Mr Morris did not indicate that he intended to provide further material or to attend a further Hearing. The explanation was insufficient and not accepted. It also suggested that Mr Morris did not in fact wish to continue however it was not clear that he wished to withdraw his application either. [18] Mr Morris was reminded on a number of occasions that he was to conduct his case in accordance with the Commission’s Directions. He declined to do so. [19] Having found that Mr Morris has unreasonably failed to attend the Commission and unreasonably failed to comply with the Directions on 22 November and 19 December 2023 I have a discretion to dismiss the application. I propose to do so. In exercising that discretion, I take into account the opportunities afforded to Mr Morris in the various communications set out above, which asked that he engage in conferences, hearings, comply with the Directions, and explained how he could do so. This includes providing further opportunities for Mr Morris to explain why he did not attend the Hearing on 12 December 2023, after Mr Morris appeared to suggest to the Commission that he did not care to continue with his application. I also take [2024] FWC 232 4 into account that Mr Morris’ application involves contested facts and s.397 of the Act requires the Commission to conduct a Conference or hold a Hearing where facts are disputed. [20] Consequently, I dismiss the matter. An Order will issue separately. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR770710>