Adam Underwood v Winston Endeavours Pty Ltd T/A Puma Energy

[2018] FWC 3257

[2018] FWC 3257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Underwood
v
Winston Endeavours Pty Ltd T/A Puma Energy
(U2018/2086)

COMMISSIONER BISSETT MELBOURNE, 6 JUNE 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 28 February 2018, Mr Adam Underwood made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Underwood said that his employment had been terminated by Winston Endeavours Pty Ltd T/A Puma Energy (Winston Endeavours) on 9 February 2018.

[2] The matter was listed for conciliation on 26 March 2018, however when he was contacted at the commencement of the conciliation, Mr Underwood stated that he was not aware of the time or length of the conciliation and that he was unable to participate as he had carer responsibilities to attend to. On the same day, the conciliator sent email correspondence to the parties confirming that the conciliation did not proceed and requesting advice from the parties, within two business days, as to whether they would like a further attempt at conciliation. The correspondence also stated that if a response was not received, the conciliator would refer the matter directly for arbitration before a Member of the Commission. Later that day, Winston Endeavours replied to the conciliator’s email correspondence confirming that it would like a further attempt at conciliation. Mr Underwood failed to respond.

[3] On 3 April 2018, the conciliator sent further email correspondence to the parties confirming that as a response had not been received from Mr Underwood, the matter would be referred for arbitration before a Member of the Commission.

[4] On 5 April 2018, directions were issued by the Commission. Mr Underwood was directed to file material in support of his application by no later than noon on 30 April 2018. Winston Endeavours was directed to file material in opposition to the application by no later than noon on 21 May 2018. The matter was listed for hearing from 11 to 13 June 2018.

[5] On 7 April 2018, Mr Underwood contacted the Commission by telephone regarding the Notice of Listing and left a voicemail message requesting a return call. He noted that he had a pre-arranged holiday booked at the time when his matter had been listed and requested his matter be rescheduled to some time after his return.

[6] On 11 April 2018, the Commission discussed Mr Underwood’s request with him by telephone. He was advised to make a request to adjourn his matter in writing and provide supporting documentation as evidence for his request. On the same day, Mr Underwood sent email correspondence to the Commission containing an adjournment request and attaching an itinerary confirming his dates of travel.

[7] On 13 April 2018, an amended Notice of Listing was sent to the parties confirming that the hearing of the matter had been rescheduled to 2 to 4 July 2018. The Notice of Listing again confirmed that as per the directions issued on 5 April 2018, Mr Underwood was to file his material by no later than noon on 30 April 2018 and Winston Endeavours was to file its material by no later than noon on 21 May 2018.

[8] On 30 April 2018, the Commission contacted Mr Underwood by telephone to remind him that his submissions were due at noon that day. The Commission asked whether it could expect material to be filed and Mr Underwood confirmed that he would be filing his submissions that day. However, Mr Underwood failed to file his submissions.

[9] On 1 May 2018, the Commission attempted to contact Mr Underwood by telephone. As he did not answer, a voicemail message was left to advise that as per the telephone conversation the previous day, his submissions were now overdue. The Commission further explained that if Mr Underwood failed to file an extension request or his submissions by noon on 2 May 2018, the matter would be listed for a non-compliance hearing. On the same day, email correspondence was sent by the Commission to Mr Underwood confirming that the Commission had not yet received his submissions and that if the Commission did not receive an extension request or submissions by noon on 2 May 2018, the matter would be listed for a non-compliance hearing on 4 May 2018.

[10] In the afternoon of 2 May 2018, a Notice of Listing was sent to the parties by email confirming a non-compliance hearing would proceed on 4 May 2018. The Notice of Listing was also sent to Mr Underwood’s nominated postal address.

[11] On 3 May 2018, the Commission attempted to contact Mr Underwood by telephone. As he did not answer, a voicemail message was left confirming the date and time of the non-compliance hearing and requesting Mr Underwood return the Commission’s call.

[12] On 4 May 2018, a non-compliance hearing proceeded before Commissioner McKinnon. Mr Underwood could not be contacted for the hearing. Winston Endeavours made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Underwood’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted Winston Endeavours’ oral application. The Commissioner directed that a further attempt be made to contact Mr Underwood by email and post, allowing him a further seven days to file an extension request or his submissions. The Commissioner advised that should Mr Underwood fail to respond within seven days, Winston Endeavours’ s.399A application would then be considered.

[13] Following the non-compliance hearing, correspondence was sent to Mr Underwood’s nominated email and postal addresses advising him of the Commissioner’s direction to file his material or an extension request within seven days. The correspondence also advised Mr Underwood of Winston Endeavours’ s.399A application. Mr Underwood was directed to file his submissions or an extension request by no later than close of business on 11 May 2018. This correspondence stated that if Mr Underwood failed to respond, Winston Endeavours’ application under s.399A would be considered. Mr Underwood failed to respond.

[14] On 17 May 2018, further correspondence was sent to Mr Underwood’s nominated email and postal addresses regarding Winston Endeavours’ s.399A application. The correspondence advised that the matter had been allocated to Deputy President Clancy. The Deputy President directed Mr Underwood to file submissions and other documentary material in respect of Winston Endeavours’ s.399A application by no later than close of business on 24 May 2018. Further, it stated that if the Commission did not receive a response, Mr Underwood’s application for relief from unfair dismissal would be dismissed. The correspondence was sent to Mr Underwood by express post and was confirmed to have been delivered to him on 21 May 2018.

[15] To date, Mr Underwood has not filed any material with the Commission.

[16] 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.

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

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

[19] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Commission’s last contact with Mr Underwood was on 30 April 2018, and from this time he has failed to respond to numerous attempts made by the Commission to contact him. Other than the initial filing of his application and requesting an adjournment of the hearing, Mr Underwood has shown no willingness to prosecute his case and he has failed to file any material, despite being granted a further seven days following the non-compliance hearing. Furthermore, Mr Underwood has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing.

[20] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Underwood’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

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