Benedict Rumble v CVSG Electrical Construction Pty Ltd

[2019] FWC 5766

[2019] FWC 5766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benedict Rumble
v
CVSG Electrical Construction Pty Ltd
(U2019/5602)

COMMISSIONER BISSETT MELBOURNE, 20 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 21 May 2019, Mr Benedict Rumble 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).

[2] In his Form F2 – Unfair Dismissal Application(Form F2), Mr Rumble said he was notified that his employment had been terminated by CVSG Electrical Construction Pty Ltd (CVSG) on 9 May 2019 and that the dismissal took effect on the same day.

[3] On 5 June 2019, a Notice of Listing was sent to the parties scheduling the matter for a conciliation on 1 July 2019. This was sent to both Mr Rumble’s email address and postal address.

[4] On 26 June 2019, the Commission attempted to telephone Mr Rumble to confirm his telephone number for the conciliation. Mr Rumble was unable to be reached and a voicemail message was left requesting his return call. Following this, the Commission sent correspondence to Mr Rumble’s nominated email address seeking to confirm his preferred contact number for the conciliation.

[5] On 28 June 2019, the Commission sent an SMS message to Mr Rumble reminding him that the conciliation was to be held on 1 July 2019.

[6] The conciliation could not proceed on 1 July 2019 as scheduled due to Mr Rumble’s unavailability. The Commission conciliator sent correspondence to the parties advising that if either party wished to have a further opportunity to participate in conciliation, to contact the Commission within two working days.

[7] The Commission attempted to telephone Mr Rumble on 8 July 2019 but was unable to reach him and there was no opportunity to leave a voicemail. An email was subsequently sent to Mr Rumble’s nominated email address, which advised that if no response was received from him by close of business on 11 July 2019, the matter would be referred for arbitration.

[8] As no response was received from Mr Rumble, a Notice of Listing was sent to the parties on 16 July 2019 scheduling the matter for an Arbitration Conference/Hearing on 23-25 September 2019. Directions were also issued requiring Mr Rumble to file and serve an Outline of Argument, Statement(s) of Evidence and a Document List by no later than noon on 5 August 2019.

[9] No material was received from Mr Rumble on 5 August 2019.

[10] On 6 August 2019, the Commission unsuccessfully attempted to contact Mr Rumble by email and by telephone. A voicemail message was left for Mr Rumble advising him that his materials were overdue and that his matter was at risk of being listed for a Non-compliance hearing. A further telephone call was attempted later the same day and a voicemail message was left urging Mr Rumble to return the Commission’s call.

[11] On 7 August 2019, the Commission again emailed Mr Rumble asking him to contact the Commission by 3:00pm that day and advised him that his matter was at risk of being listed for a Non-compliance hearing.

[12] As no response was received by 3:00pm, a Notice of Listing was sent to the parties later on 7 August 2019 scheduling the matter for a Non-compliance hearing on 9 August 2019. The Notice of Listing was sent to Mr Rumble’s nominated email address.

[13] The Non-compliance hearing proceeded before Deputy President Masson on 9 August 2019. Mr Rumble could not be contacted. CVSG made an oral application that the matter be dismissed pursuant to s.399A of the Fair Work Act 20199 (FW Act) due to Mr Rumble’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[14] Following the Non-compliance hearing, correspondence was sent to Mr Rumble’s email address and postal address advising him of the s.399A application. Mr Rumble was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00pm on 16 August 2019. The correspondence warned that if the Commission did not receive a response, Mr Rumble’s application for relief from unfair dismissal may be dismissed. The correspondence was sent via express post and the Australia Post tracking ID indicates that it was delivered to Mr Rumble’s nominated postal address on 12 August 2019.

[15] As no response was received from Mr Rumble on 19 August 2019, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing scheduled for 23-25 September 2019.

[16] To date, Mr Rumble has not filed any material with the Commission.

[17] Section 399A of the FW 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.”

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

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

[20] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Since filing his application, Mr Rumble has failed to actively prosecute his case and has not engaged at all with the Commission. Mr Rumble has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the Non-compliance hearing on 9 August 2019.

[21] In all the circumstances I am satisfied that Mr Rumble has unreasonably failed to comply with directions with respect to his application. There is no indication from Mr Rumble that he intends to pursue his application.

[22] I have therefore decided to dismiss Mr Rumble’s application. An Order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR711463>

 1   PR711464.