Brent Pannell v Pivot Project Group Pty Ltd T/A Pivot Project Group

[2021] FWC 623

[2021] FWC 623

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brent Pannell
v
Pivot Project Group Pty Ltd T/A Pivot Project Group
(U2020/15145)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] On 23 November 2020, Mr Brent Pannell 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 Pannell said he was notified that his employment had been terminated by Pivot Project Group Pty Ltd T/A Pivot Project Group (Pivot Project Group) on 20 November 2020 and that the termination took effect on the same day.

[3] In its Form F3 – Employer response to unfair dismissal application, Pivot Project Group outlined that it objected to Mr Pannell’s unfair dismissal application on the basis that he was not dismissed.

[4] The matter proceeded to a conciliation on 8 December 2020 but did not settle. The matter was subsequently allocated to me for further case management.

[5] At a Telephone Mention on 14 December 2020, Mr Pannell appeared for himself and Mr Richard Podkriznik appeared for Pivot Project Group. I made Directions for the filing of material which required Pivot Project Group to file an Outline of Argument, Statement(s) of Evidence and a Document List by no later than 3:00PM on 18 January 2021. Mr Pannell was then required to file an Outline of Argument, Statement(s) of Evidence and a Document List by no later than 3:00PM on 2 February 2021 and Pivot Project Group was directed to file any reply material by no later than 3:00PM on 8 February 2021. The Directions further listed the matter for an Arbitration Conference/Hearing on 15 and 16 February 2021. I also explained to the parties my expectations with regard to the programmed timeline and the importance of complying with my Directions.

[6] Following the Mention, I issued these Directions in writing, which included reference to s.386 of the Act.

[7] Mr Pannell did not file any material by 3:00PM on 2 February 2021, as required by my Directions.

[8] On 3 February 2021, the parties were advised via email that a non-compliance hearing was to be held at 9:00AM on 4 February 2021 due to Mr Pannell’s non-compliance with my Directions.

[9] The non-compliance hearing proceeded before me on 4 February 2021. Mr Pannell could not be contacted despite two attempted telephone calls. Pivot Project Group made an oral application that the matter be dismissed pursuant to s.399A of the Act due to Mr Pannell’s failure to comply with the directions of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[10] Later the same day on 4 February 2021, email correspondence was sent to Mr Pannell advising him of Pivot Project Group’s s.399A application. Mr Pannell was directed to file submissions and other documentary material in respect of the s.399A application by no later than 12:00PM on Monday, 8 February 2021. The correspondence warned that if no response was received by this time, Mr Pannell’s unfair dismissal application may be dismissed without further notice.

[11] Mr Pannell did not file any material with the Commission by 12:00PM on Monday, 8 February 2021.

[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 Pannell did not file any material in opposition to the s.399A application to dismiss, I will determine the s.399A application made by Pivot Project Group on the papers.

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Pannell has failed to actively prosecute his case since the conciliation on 8 December 2020. Following the Telephone Mention before me on 14 December 2020, he was on notice that his material was due by no later than 3:00PM on 2 February 2021 and that his matter would be at risk of being listed for a non-compliance hearing if he did not comply with my Directions. Through the correspondence and Notice of Listing sent on 3 February 2021, Mr Pannell was also on notice that there would be a non-compliance hearing on 4 February 2021. Despite the two voicemail messages left seeking his return call on 4 February 2021, and the subsequent correspondence directing him to file a response to the s.399A application, Mr Pannell has not contacted the Commission and nor has he provided any explanation to the Commission for either his continued failure to comply with my Directions or his failure to attend the non-compliance hearing. Mr Pannell was warned via email after the non-compliance hearing on 4 February 2021 that his unfair dismissal application was at risk of being dismissed and but failed to make contact with the Commission in response.

[16] In all the circumstances, I am persuaded that Mr Pannell has unreasonably failed to comply with my Directions issued on 14 December 2021 and has unreasonably failed to attend the non-compliance hearing on 4 February 2021 and I should therefore exercise my discretion under s.399A and dismiss his unfair dismissal application. This ends his unfair dismissal application.

[17] An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

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