Bradley Reid v Ausente Pty Ltd

[2017] FWC 2287

[2017] FWC 2287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Reid
v
Ausente Pty Ltd
(U2016/15419)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 APRIL 2017

Application for an unfair dismissal remedy.

[1] On 23 December 2016, Mr Bradley Reid made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Reid was notified of his dismissal by Ausente Pty Ltd (Ausente) on 11 December 2016.

[2] The matter was listed for conciliation on 2 February 2017, however, it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Reid was directed to file an outline of argument, statement of evidence and document list by noon on Monday, 13 March 2017. However, as a consequence of Ausente being granted an extension to file its material, Mr Reid’s due date for material was extended to noon, Monday 27 March 2017.

[4] On 17 March 2017, Mr Reid telephoned the Fair Work Commission and said he thought the matter was at an end because Legal Aid had ceased acting for him. It was explained that the matter was proceeding and Mr Reid advised he was not sure if he could represent himself. The Commission advised that the material filed by Ausente, the Notice of Listing and some forms to assist him in preparing his material would be sent to him via express post. The correspondence sent by the Commission to Mr Reid on 17 March 2017 included advice that his submissions were due to be filed on 27 March 2017. Mr Reid’s address was confirmed and he advised he would check his mail in due course.

[5] On 28 March 2017, the Commission telephoned Mr Reid as he had not filed any material. Mr Reid said he thought the material was not due for another month. Mr Reid was advised that the matter would be listed for a non compliance hearing via telephone at 8.30am (QLD time) on Friday of that week, 31 March 2017. Mr Reid was advised he would need to explain his non compliance with directions and could make an application for an extension to file his material. Mr Reid confirmed he would attend the hearing.

[6] On 29 March 2017, a voicemail message was left for Mr Reid, confirming the Notice of Listing for the non compliance hearing had been sent via express post that day and to expect a telephone call at 8.30am on Friday, 31 March 2017.

[7] Mr Reid did not attend the non compliance hearing on 31 March 2017. Ausente made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Reid had failed to comply with the direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Ausente’s oral application.

[8] On 31 March 2017, Mr Reid was sent correspondence informing him of Ausente’s s.399A application. Mr Reid was directed to file submissions and other documentary material in respect of Ausente’s application by close of business on Monday, 10 April 2017. Mr Reid was advised that if he failed to comply with this direction, his application would be dismissed. The correspondence was sent via express post and a review of the Australia Post tracking system indicates the mail was delivered on 5 April 2017.

[9] Mr Reid did not file any material with the Commission.

[10] 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.

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

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Reid has failed to respond to the Commission’s correspondence, despite being notified via telephone to expect such correspondence. He has shown a lack of willingness to prosecute his case and did not attend the non compliance hearing on 31 March 2017. He has provided no explanation for his failure to comply with directions in relation to his application under s.394 of the Act and Ausente’s application under s.399A of the Act. In these circumstances, I will exercise my discretion under s.399A(1)(b) and dismiss Mr Reid’s application. An order giving effect to this decision will be issued.

DEPUTY PRESIDENT

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