Benji Palmer v Fleet Safety Service T/A Minecorp

[2018] FWC 4279

[2018] FWC 4279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benji Palmer
v
Fleet Safety Service T/A Minecorp
(U2018/3559)

COMMISSIONER BISSETT MELBOURNE, 20 JULY 2018

Application for an unfair dismissal remedy.

[1] On 5 April 2018, Mr Benji Palmer 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). Mr Palmer said he was notified of his dismissal by Fleet Safety Service t/a Minecorp (Minecorp) on 23 March 2018, and that the dismissal took effect on 29 March 2018.

[2] The matter was listed for conciliation on 8 May 2018 but was later cancelled by the Commission due to operational reasons. A new Notice of Listing was issued to parties confirming the rescheduled conciliation details for 16 May 2018. Despite two attempts to telephone Mr Palmer, the conciliation could not proceed as he could not be contacted.

[3] On 31 May 2018, directions were issued to parties and the matter was listed for a Jurisdiction (Resignation) and Arbitration Conference/Hearing on 1-3 August 2018. Minecorp was directed to file its initial material by no later than noon on 11 June 2018 and its reply material by noon on 25 June 2018. Mr Palmer was directed to file his material by no later than noon on 18 June 2018.

[4] On 11 June 2018, Minecorp filed its material.

[5] On 18 June 2018, the Commission telephoned Mr Palmer in relation to his overdue submissions. Mr Palmer advised that he was unaware that he needed to file material and that he would submit a request for an extension to file his material later that day. No request was received from Mr Palmer.

[6] On 19 June 2018, the Commission sent an email to Mr Palmer advising him that a non-compliance hearing would be scheduled if he did not file his material or request an extension to file his material by noon on 20 June 2018.

[7] On 20 June 2018, as no correspondence was received from Mr Palmer, a Notice of Listing was issued to parties scheduling the non-compliance hearing on 22 June 2018.

[8] On 21 June 2018, the Commission attempted to telephone Mr Palmer in relation to the non-compliance hearing. This was unsuccessful and a voicemail was left seeking a return call.

[9] The non-compliance hearing proceeded before Commissioner Wilson on 22 June 2018. Both parties attended the hearing and the Commissioner granted Mr Palmer an extension to file his material to no later than 5.00 pm on 29 June 2018. Mr Palmer was also advised that if he did not comply with the direction, his matter would proceed to another non-compliance hearing. The direction of Commissioner Wilson was confirmed via a Notice of Listing issued to parties, by post and email, on the same day.

[10] On 2 and 3 July 2018, the Commission attempted to telephone Mr Palmer in relation to his overdue material. This was unsuccessful and voicemails were left seeking a return call.

[11] On 3 July 2018, a Notice of Listing was issued to parties scheduling a further non-compliance hearing for 6 July 2018.

[12] The non-compliance hearing proceeded before Deputy President Masson on 6 July 2018. Mr Palmer could not be contacted. Minecorp made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Palmer’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Minecorp’s oral application.

[13] Following the non-compliance hearing, correspondence was sent to Mr Palmer, via express post and email, advising him of Minecorp’s s.399A application. Mr Palmer was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by close of business on 13 July 2018. The express post tracking ID indicates that the correspondence was delivered to Mr Palmer on 10 July 2018.

[14] To date, Mr Palmer has not filed any material with the Commission.

[15] 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.’

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

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

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Apart from initially filing his application and attending the first non-compliance hearing on 22 June 2018, Mr Palmer has failed to engage with the Commission’s processes for progressing his case. This was despite advice given to Mr Palmer by Commissioner Wilson that his matter would proceed to another non-compliance hearing if he did not file his material. Mr Palmer has provided no explanation to the Commission for either his failure to comply with the amended direction or his failure to attend the non-compliance hearing before Deputy President Masson. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Palmer’s application.

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

COMMISSIONER

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