Benjamin Fox v Telstra T/A Telstra

[2018] FWC 5993

[2018] FWC 5993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Fox
v
Telstra T/A Telstra
(U2018/6972)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] On 8 July 2018, Mr Benjamin Fox 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, Mr Fox stated that he was notified of his dismissal by Telstra on 29 June 2018, and that it took effect on the same day.

[3] On 16 July 2018, a Notice of Listing was sent to the parties scheduling a conciliation for 7 August 2018.

[4] On 2 August 2018, the Commission attempted to telephone Mr Fox to confirm his preferred contact number for the upcoming conciliation. This was unsuccessful as Mr Fox’s nominated telephone number could not be connected. Following this, correspondence was emailed to Mr Fox seeking his response.

[5] On 6 August 2018, a SMS was sent to the parties reminding them of the conciliation scheduled the next day.

[6] On 7 August 2018, the conciliation did not proceed as Mr Fox could not be contacted. The Commission later emailed correspondence to the parties stating that unless Mr Fox advised that he wished for the matter to proceed to a further conciliation within two working days, the matter would be referred for arbitration.

[7] On 10 August 2018, as Mr Fox had not contacted the Commission, Directions were issued requiring Mr Fox to file his material by no later than noon on 3 September 2018 and Telstra to file its reply material by no later than noon on 24 September 2018.

[8] On 3 September 2018, a Notice of Listing was sent to the parties scheduling the matter for an Arbitration Conference/Hearing on 24-25 October 2018.

[9] On 4 September 2018, as Mr Fox had not filed any material, Telstra made an application pursuant to s.399A of the Act that the matter be dismissed for reasons including Mr Fox’s failure to attend the conciliation, failure to respond to correspondence from the Commission dated 7 July 2018 in relation to proceeding to a further conciliation, and failure to comply with a direction of the Commission to file material.

[10] On 10 September 2018, correspondence was sent to Mr Fox, via email and post, informing him of Telstra’s s.399A application. Mr Fox was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 17 September 2018. The correspondence further stated that if the Commission did not receive a response, Mr Fox’s application for relief from unfair dismissal would be dismissed.

[11] Later the same day, the Commission telephoned Mr Fox to discuss the recent correspondence sent to him. Mr Fox advised the Commission that he had only just regained access to his emails and was therefore unaware of the requirement to file material. During the telephone conversation, Mr Fox was reminded to provide a response to the s.399A application by 4:00PM on 17 September 2018. At Mr Fox’s request, the Directions dated 10 August 2018 and the Notice of Listing dated 3 September 2018 were resent to him via email.

[12] On 19 September 2018, as no response was received from Mr Fox, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing scheduled for 24-25 October 2018.

[13] To date, Mr Fox has not filed any material with the Commission.

[14] 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.”

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

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

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Fox has failed to respond to the attempts made by the Commission to contact him. Apart from initially filing his application and despite the telephone call to him on 10 September 2018, Mr Fox has shown no willingness to prosecute his case and has provided no explanation for his failure to comply with the Commission’s directions. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Fox’s application.

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

DEPUTY PRESIDENT

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