Benjamin Beazley v E E Muir & Sons Pty Ltd

[2019] FWC 8123

[2019] FWC 8123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Beazley
v
E E Muir & Sons Pty Ltd
(U2019/9292)

COMMISSIONER BISSETT MELBOURNE, 2 DECEMBER 2019

Application for an unfair dismissal remedy – s.399A application to dismiss – application granted.

[1] On 21 August 2019, Mr Benjamin Beazley (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by EE Muir & Sons Pty Ltd (Respondent) on 20 August 2019.

[2] The matter was listed for conciliation on 20 September 2019 however the conciliation could not proceed as the Commission was unable to contact the Applicant on his nominated mobile telephone number on that date. The Commission attempted to call the Applicant five times on his nominated telephone number. Two voicemail messages were left.

[3] On 24 September 2019, the Commission attempted to call the Applicant on his nominated telephone number. A voicemail message was left requesting a return call.

[4] Later that day the Applicant emailed correspondence to the Commission that advised a family member had passed away and that he had been busy as a result. Also on that day, the Commission corresponded by email to request the Applicant advise how he wished to proceed with his application. The correspondence advised that if the Commission did not hear anything further, the matter would be referred to be listed for Hearing. No response by the Applicant was received.

[5] On 26 September 2019, as no reply from the Applicant was received, directions were issued to the parties and the matter was listed for Jurisdiction (No Dismissal) and Arbitration Conference/Hearing on 16 – 18 December 2019. The Applicant was directed to file his material by no later than noon on 21 October 2019. No such material was received.

[6] On 15 October 2019, the Respondent emailed correspondence to the Commission requesting an extension of time to file materials. This correspondence was forwarded to the Applicant’s nominated email address. No response was received from the Applicant in relation to this request.

[7] On 16 October 2019, following the request from the Respondent, amended directions were issued. The Applicant was directed to file his material by no later than 4:00pm on 23 October 2019.

[8] On 24 October 2019, the Commission attempted to call the Applicant on his nominated mobile telephone number. A voicemail message was left advising that his material was due on 23 October 2019 and the Commission has not received any material.

[9] Later that day, the Commission emailed correspondence to the Applicant’s nominated email address. That correspondence advised that the Applicant’s material was overdue and to contact the Commission by 4:00pm on 24 October 2019.

[10] On 28 October 2019, the Commission emailed correspondence to the Applicant’s nominated email address. That correspondence advised to contact the Commission by noon on 28 October 2019 and that the matter was at risk of being listed for a Non-Compliance Hearing.

[11] On 30 October 2019, the Commission attempted to call the Applicant on his nominated mobile telephone number. A voicemail message was left requesting a return call as soon as possible. No response to this voicemail message was received.

[12] As no response from the Applicant was received, a Notice of Listing was issued to the parties scheduling a Non-Compliance Hearing for 1 November 2019.

[13] At 6:55am on 31 October 2019, the Respondent emailed correspondence to the Commission requesting the Non-Compliance Hearing be adjourned. The Applicant was copied into this correspondence. No response was received from the Applicant in relation to this request.

[14] At 3:39pm on 31 October 2019, an amended Notice of Listing was issued to the parties advising the Non-Compliance Hearing was adjourned to 8 November 2019.

[15] On 6 November 2019, the Commission issued a further Notice of Listing to the parties confirming the time and the telephone numbers on which they would be contacted for the Non-Compliance Hearing on 8 November 2019. The Notice of Listing advised the Applicant would be contacted on his nominated telephone number unless he advised otherwise.

[16] The Non-Compliance Hearing proceeded before Deputy President Clancy on 8 November 2019. The Commission attempted to call the Applicant on his nominated mobile phone number but he was unable to be contacted. A voicemail message was left. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with the directions of the Commission. Deputy President Clancy waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[17] On 8 November 2019, following the Non-Compliance Hearing, correspondence was sent to the Applicant’s nominated email address advising him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by no later than 4.00 pm on 15 November 2019. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice

[18] To date, the Applicant has not filed any material with the Commission.

[19] 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.

[20] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[21] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact him and has provided no explanation to the Commission for his failure to comply with the directions of the Commission. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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