Barry Fowler v Marco Body Repairs Canberra T/A Mitchell Tyres & More

[2014] FWC 826

[2014] FWC 826

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Barry Fowler
v
Marco Body Repairs Canberra T/A Mitchell Tyres & More
(U2013/13380)

COMMISSIONER DEEGAN CANBERRA, 3 FEBRUARY 2014

Application for relief from unfair dismissal

[1] On 9 September 2013 Mr Barry Fowler (the applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment with Marco Body Repairs Canberra T/A Mitchell Tyres & More (the respondent). On the basis of the information provided in the application, the application was lodged six days after the expiration of the statutory time limit set out in s.394(2) of the Act.

[2] The matter was listed for a conciliation, to take place on 6 November 2013. The applicant was not able to be contacted on the telephone number that was provided so the conciliation could not proceed. An email was sent from the applicant’s email address later that day advising that the applicant had been ill for over two weeks.

[3] When the respondent was contacted to ascertain availability for a second conciliation, Mr Ante Nazor from the respondent advised that the respondent would only be prepared to participate in a conciliation of the matter if the applicant provided a medical certificate that explained his absence from the first conciliation.

[4] As a medical certificate was not forthcoming, the matter was referred for hearing. Directions were issued on 5 December 2013, requiring the applicant to lodge an outline of submissions and witness statements relevant to the extension of time issue by 19 December 2013.

[5] As the relevant documentation was not lodged prior to the time stipulated in the Directions, on 20 December the applicant was telephoned by my Chambers, and a message left requesting the applicant contact the Commission. On 10 January 2014 my Chambers sent an email advising that if the applicant wished to continue with his application, he must contact the Commission immediately, and that if no further correspondence was received by 15 January the matter would be listed for hearing to deal with the applicant’s non-compliance with the Directions.

[6] As the applicant did not contact the Commission, on 16 January 2014 the matter was listed for hearing, to take place on 28 January. On 25 January an email was sent from the applicant’s email address advising that the applicant had been ill, though no further information was provided.

[7] The applicant failed to appear at the hearing on 28 January and the respondent made an application to have the substantive application dismissed pursuant to s.399A of the Act. An email was sent to the applicant the same day advising him that if a medical certificate or letter from his treating physician was not received by the Commission by 5pm on 31 January 2014, then the application would, in all likelihood, be dismissed.

[8] The applicant did not contact the Commission, and no further correspondence has been received.

[9] 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 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.

[10] As a consequence of the applicant’s failure to comply with the Directions of the Commission or attend the hearing on 28 January 2014, or to provide a medical certificate explaining these failures, I have decided to dismiss the application pursuant to s.399A(1).

[11] The application is dismissed.

Appearances:

Mr Ante Nazor from the respondent

Hearing details:

2014.

Canberra:

January 28.

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