Brandon Lee v Green Valley Grains P/L

[2017] FWC 4012

[2017] FWC 4012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brandon Lee
v
Green Valley Grains P/L
(U2017/3092)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 21 March 2017, Mr Brandon Lee made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Lee said his employment had been terminated by Green Valley Grains P/L (GVG) on 20 March 2017.

[2] On 24 March 2017, a Notice of Listing was sent to the parties, advising of a conciliation on 28 April 2017.

[3] On 27 April 2017, a Fair Work Commission (Commission) staff member spoke with GVG and advised the conciliation listed for 28 April 2017 was unable to proceed due to the conciliator being unwell. GVG requested that the conciliation be relisted from 8 May 2017 onwards. On 27 April and 28 April 2017, attempts were made by the Commission to contact Mr Lee and voice messages were left advising that conciliation would be relisted.

[4] On 28 April 2017, a Notice of Listing was sent to the parties advising the new conciliation date of 9 May 2017.

[5] A Short Message Service (SMS) message was sent to parties on 8 May 2017, reminding them of the upcoming conciliation. Ultimately, the conciliation could not take place on 9 May 2017 as Mr Lee could not be contacted, despite numerous voice messages being left on the day and four subsequent attempts made by the conciliator seeking a response.

[6] Consequently, directions were issued and Mr Lee was directed to file an outline of submissions, witness statements and other documentary material by no later than noon on Tuesday, 13 June 2017.

[7] On 9 June 2017, the Commission sent an SMS reminder to Mr Lee, advising that his submissions were due to be filed on 13 June 2017.

[8] On 14 June 2017, the Commission made attempts to telephone Mr Lee and his support person, however these were unsuccessful and voicemail messages were left requesting that they return the Commission’s call.

[9] As Mr Lee did not comply with the directions, the matter was listed for a non compliance hearing before Commissioner Roe on 16 June 2017.

[10] Mr Lee did not attend the non compliance hearing. GVG made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Lee had failed to comply with a direction of the Commission. Commissioner Roe waived compliance with the Fair Work Commission Rules 2013 and accepted GVG’s oral application. Correspondence was then sent to Mr Lee informing him of GVG’s s.399A application. Mr Lee was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Friday, 23 June 2017. This correspondence was sent to Mr Lee via email and post.

[11] To date, Mr Lee has not filed any material with the Commission.

[12] 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.

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

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

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Lee has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application, Mr Lee has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Lee’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR594989>