Aaron Willetts v FoodWorks East Fremantle

[2017] FWC 5872

[2017] FWC 5872

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Willetts
v
FoodWorks East Fremantle
(U2017/9032)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 20 August 2017, Mr Aaron Willetts made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Willetts said he was notified of his dismissal on 31 July 2017, with it taking effect the same day.

[2] FoodWorks East Fremantle (FoodWorks), in the Form F3 – Employer Response, said Mr Willetts’ dismissal took effect on 28 July 2017 and therefore his application was filed out of time. FoodWorks also raised an objection that Mr Willetts had not served the minimum employment period.

[3] The matter was listed for conciliation on 15 September 2017, however it did not resolve. Consequently, directions were issued and the matter was listed for Extension of Time and Jurisdiction (Minimum Employment Period; Casual) Conference/Hearing. Mr Willetts was directed to file an Outline of Argument: Extension of Time, Statement of Evidence and Document List in support of his application for an extension of time by no later than noon on 20 October 2017. FoodWorks was similarly directed to file material at this time.

[4] As no material had been received, in the afternoon of 20 October 2017 the Commission attempted to telephone Mr Willetts, however this was unsuccessful and a voicemail message was left seeking a return call. A call was also made to FoodWorks as no material was received from it and a message was left for a return call.

[5] On 23 October 2017, a further voicemail message was left for Mr Willetts regarding his outstanding material. The following day, email correspondence was sent to Mr Willetts which noted that no material had been received. Mr Willetts was asked to contact the Commission to advise when he intended to file his submissions. It was noted in the absence of a response, the matter would be listed for a non-compliance hearing on 27 October 2017. The following morning, an SMS message was sent to Mr Willetts which sought a return call, and a further voicemail message was also left.

[6] The non-compliance hearing proceeded before Commissioner McKinnon on 27 October 2017. Mr Willetts did not attend the hearing as he could not be contacted. FoodWorks made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Willetts had failed to comply with a direction of the Commission. Commissioner McKinnon waived compliance with the Fair Work Commission Rules 2013 and accepted FoodWorks’ oral application. Correspondence was then sent to Mr Willetts informing him of FoodWorks’ s.399A application. Mr Willetts was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 3 November 2017. This correspondence was sent to Mr Willetts via email and post.

[7] To date, Mr Willetts has not filed any material with the Commission.

[8] Section 399A of the Act provides as follows:

399A Dismissing applications

(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.

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

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

[11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Willetts has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application and attending the conciliation, Mr Willetts has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Willetts’ application.

[12] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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