Anthony Goodacre v Gunnedah Leather Processors Pty Ltd T/A Gunnedah Leather Processors Pty Ltd

[2017] FWC 5898

[2017] FWC 5898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anthony Goodacre

v

Gunnedah Leather Processors Pty Ltd T/A Gunnedah Leather Processors Pty Ltd

(U2017/9364)

DEPUTY PRESIDENT BOOTH SYDNEY, 9 NOVEMBER 2017

Application for an unfair dismissal remedy s. 399A – application dismissed.

1. The Applicant, Mr Goodacre, made an application to the Fair Work Commission (the Commission) pursuant to s. 394 of the Fair Work Act 2009 (the Act) on 29 August 2017 alleging he had been unfairly dismissed by Gunnedah Leather Processors Pty Ltd (GLP).

1. After an unsuccessful telephone conciliation on 21 September 2017 the matter was moved to me.

1. On 26 September 2017 I issued a notice of listing for Mention by Telephone on 5 October 2017, and Arbitration on 23 November 2017. I also issued Directions requiring material to be filed by Mr Goodacre by 17 October 2017, with material from GLP in reply due by 7 November 2017.

1. My chambers attempted to contact Mr Goodacre at the time of the Mention on 5 October 2017. Mr Goodacre’s telephone was answered by someone who identified themselves as his daughter and informed my chambers that Mr Goodacre had been hospitalised and was not available to participate in the Mention. I note that GLP was also not able to be contacted at the time of the Mention, although they contacted my chambers a short time later to advise that a diary error had been made. Accordingly the Mention did not proceed.

1. I relisted the matter for Mention on 16 October 2017. My chambers contacted Mr Goodacre at the time of the Mention, however he said that he was unaware of the Listing, as he had been in hospital and had not been checking his email account. My chambers explained the purpose of the Mention to Mr Goodacre, however he advised he was about to attend an appointment with his doctor and said words to the effect of ‘I’m not up to this, I’ll call back in 10 minutes’ and hung up. He did not call back and the Mention did not proceed.

1. Mr Goodacre did not comply with the direction to file material by 17 October 2017. To date no material has been filed by Mr Goodacre.

2. I listed the matter for a Compliance Hearing by telephone on 25 October 2017. At the request of GLP, that date was amended to 27 October 2017.

1. At the time of the compliance hearing, although my chambers made multiple calls, Mr Goodacre was unable to be contacted. Accordingly, the hearing did not proceed, although GLP indicated they would consider making an application pursuant to s. 399A of the Act.

1. GLP did make an application pursuant to s. 399A on the same day.

1. 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.”

1. GLP’s application was made on the basis that Mr Goodacre had failed to attend the Mention listed for 5 October 2017 and 16 October 2017, failed to file material pursuant to Directions and had failed to attend the compliance hearing.

1. I directed my chambers to write to Mr Goodacre advising him should he wish to provide a response to the Respondent’s application, this should be received by no later than 2 November 2017.

1. On 31 October 2017 Mr Goodacre wrote the following email to my chambers and GLP (addressing Mr Welington Sardinha, General Manager of GLP):

“Dear Welington after reflection and medical advice I wish to withdraw my complaint kind regards anthony goodacre”

1. As the email was addressed to GLP, and noting that the application form filed by Mr Goodacre indicated that he had made allegations of workplace bullying, I considered that it was not clear that what Mr Goodacre intended to withdraw was his unfair dismissal application to the Commission.

1. I directed my chambers to contact Mr Goodacre to confirm whether he did in fact intend to withdraw that application. However Mr Goodacre has been unable to be contacted by telephone. He has not replied to an email sent by my chambers on 3 November 2017 requesting that he confirm whether he was in fact referring to withdrawing his application to the Commission. In those circumstances I consider that I should determine the application made by GLP pursuant to s. 399A of the Act to dismiss the matter.

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

1. As Mr Goodacre did not file any material in opposition to the application to dismiss his application for unfair dismissal remedy I decided to determine the application on the papers.

1. I note Mr Goodacre’s failure to attend either listed Mention in this matter, to file any material in accordance with Directions, or to attend the compliance hearing.

1. I am prepared to accept that Mr Goodacre was hospitalised at the time of the Mention listed for 5 October 2017 and I accordingly I do not consider that he unreasonably failed to attend on that occasion.

1. I note that at the time of the Mention listed on 16 October 2017 Mr Goodacre advised my chambers that he had been unwell and did not feel ‘up to’ participating. However he has not subsequently contacted my chambers (with the exception of his email on 31 October 2017) and has not provided any evidence to indicate that his ill health may have affected his ability to prepare and file material in his matter, which was due more than three weeks ago, or participate in the compliance hearing.

1. In these circumstances I am satisfied that Mr Goodacre unreasonably failed to comply with the Directions issued on 26 September 2017, and unreasonably failed to attend the compliance hearing on 27 October 2017. I find that both s. 399A(1)(a) and (b) of the Act are therefore satisfied.

1. Section 399A(2) is satisfied in that Mr Goodacre’s former employer, GLP, has made the application for dismissal of the matter.

1. I consider the Commission’s power to dismiss an application for an unfair dismissal remedy is enlivened by the satisfaction of s.399A(1) (a) and (b) and (2). In all the circumstances I have decided to exercise my discretion to dismiss Mr Goodacre’s application.

Accordingly Mr Goodacre’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

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