Anthony Breen v 5 Star Roof Tiling T/A 5 Star Roof Tiling

[2017] FWC 6377

[2017] FWC 6377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Breen
v
5 Star Roof Tiling T/A 5 Star Roof Tiling
(U2017/9202)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 23 August 2017, Mr Anthony Breen made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Breen said he was notified of his dismissal on 15 August 2017, with it taking effect the same day.

[2] On 3 September 2017, 5 Star Roof Tiling filed its Form F3 – Employer Response. It raised a jurisdictional objection that Mr Breen had not been dismissed.

[3] The matter was initially listed for conciliation on 20 September 2017, however, Mr Breen could not be contacted at the relevant time. Mr Breen sent an email to the Fair Work Commission later that day requesting that his application proceed as he only missed a call-back due to starting in a new job. A conciliation was re-listed for 16 October 2017, however again, Mr Breen could not be contacted on that day.

[4] On 17 October 2017, Mr Breen sent email correspondence to the Commission noting that at the time the conciliation was scheduled on 16 October 2017, he was at work and was very busy. He said he attempted to return the call during his break, but could not get through. Mr Breen requested the matter proceed during the period 1 November to 6 November 2017.

[5] On 25 October 2017, parties were sent a Notice of Listing which advised the Conference/Hearing dates and also the Requirements to file material. Mr Breen was required to file an Outline of Argument, Outline of Argument: Objections, Statement of Evidence and Document List by no later than noon on 13 November 2017.

[6] On Friday 10 November 2017, an SMS message was sent to Mr Breen, reminding him that his written submissions were due to be filed on the coming Monday.

[7] As no material had been filed, in the afternoon of 13 November 2017, the Commission sent Mr Breen an email advising if he wished to proceed with his application, he would need to file a request for an extension to file his submissions or to otherwise file his material. Mr Breen was advised that in the absence of any response, his matter would be listed for a non-compliance hearing on 17 November 2017.

[8] On 15 November 2017, two voicemails were left for Mr Breen which sought urgent return calls. An SMS message was also sent on this day which requested a return call as soon as possible. A non-compliance hearing for 17 November 2017 was listed, with Mr Breen notified via his nominated email address on 16 November 2017.

[9] The non-compliance hearing proceeded before Commissioner Bissett on 17 November 2017. Attempts were made to contact Mr Breen on both telephone numbers provided, however there was no answer. 5 Star Roof Tiling made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Breen had failed to comply with a direction of the Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted 5 Star Roof Tiling’s oral application. Correspondence was then sent to Mr Breen, informing him of 5 Star Roof Tiling’s s.399A application. Mr Breen was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 24 November 2017. This correspondence was sent to Mr Breen via email and post.

[10] To date, Mr Breen has not filed any material with the Commission.

[11] 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.

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

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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Breen has failed to respond to the many attempts by the Commission to contact him. Having filed his application and requested conciliation conferences, Mr Breen did not attend either of them and has otherwise shown no willingness to prosecute his case. He 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 Breen’s application.

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

DEPUTY PRESIDENT

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