Brian Hancock v Department of Justice And Community Safety

[2024] FWC 727

[2024] FWC 727

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brian Hancock
v

Department of Justice And Community Safety

(U2024/512)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MARCH 2024

Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A of the Fair Work Act 2009.

1. On 15 January 2024, Mr Brian Hancock (the Applicant) made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is the Department Of Justice And Community Safety (the Respondent).

1. In his Form F2 – Unfair Dismissal Application (Form F2), Mr Hancock provided a mobile phone number and an email address, both of which have been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Mr Hancock received a response that it was “undeliverable”.

1. On 18 January 2024 a Notice of Listing for a telephone staff conciliation at 9:15am AEDT on 21 February 2024, was emailed to the parties.

1. On 21 February 2024, the staff conciliation could not proceed as Mr Hancock failed to attend. Mr Hancock was sent email correspondence notifying him that should he wish for his matter to proceed via a further conciliation he would need to email a request within two working days, together with details as to why he was unable to attend the first conciliation. Mr Hancock was advised that if the Commission did not hear from him within two working days his matter would be referred to a Member for arbitration. Mr Hancock did not respond to the Commission’s correspondence.

1. The matter was allocated to me on 27 February 2024. On 28 February 2024, I caused Directions and a Notice of Listing for a telephone Mention, to be held at 9:15am on 1 March 2024, to be sent to the parties. My Directions, dated 28 March 2024, outlined the timeline for the filing and service of material ahead of an Arbitration Conference/Hearing. In particular, Mr Hancock was directed to file and serve his Outline of Argument, Statement(s) of Evidence and Document List, by no later than 3.00pm on Friday, 15 March 2024.

1. On 1 March 2024, my Chambers attempted to contact Mr Hancock on his nominated telephone number. Mr Hancock could not be reached. Multiple voicemail messages were left advising Mr Hancock of the Mention and that he was required to make himself available or else the Mention would proceed in his absence. The Mention proceeded in the absence of Mr Hancock. During the Mention, my Directions of 28 February 2024 were discussed and explained to the Respondent.

1. By 3pm on Friday, 15 March 2024, Mr Hancock had not complied with my Directions. Accordingly, email correspondence and a Notice of Listing was sent to the parties for a Non-compliance hearing at 4pm on Monday, 18 March 2024.

1. The Non-compliance hearing proceeded before me on 18 March 2024. Mr Hancock could not be contacted, despite two attempts to call him on his nominated mobile telephone number and a voicemail message requesting his attendance. The Non-compliance hearing proceeded in Mr Hancock’s absence, as I was satisfied he had been placed on notice that it would be occurring and had provided no indication that he would not be able to attend. During the Non-compliance hearing the Respondent made an application pursuant to s.399A of the Act to have Mr Porter’s unfair dismissal application dismissed. I waived compliance with the Fair Work Commission Rules 2013 and accepted this application during the Non-compliance hearing.

1. Immediately following the Non-compliance hearing, correspondence was sent to Mr Hancock’s nominated email address advising him of the Respondent’s s.399A application. Mr Hancock was directed to file submissions by no later than 4.00pm, on 21 March 2024, explaining why he had neither complied with the Directions to file material, nor attended the Non-compliance hearing, the Mention or the Staff Conciliation. This correspondence outlined that if the Commission did not receive a response, the s.399A application would be determined based on the material currently before the Commission and Mr Hancock was cautioned that in the absence of a response, his unfair dismissal application would likely be dismissed without further notice, via a Decision and Order which would be published to the Commission’s website.

1. As at 4:00pm on 21 March 2024, Mr Hancock had not filed any material with the Commission in response to the s.399A application. Nor had he made any contact with my Chambers. This failure to do so is in addition to Mr Hancock’s continued failure to file material for the Arbitration Conference/Hearing pursuant to my Directions dated 28 February 2024.

1. 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.

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As Mr Hancock did not file any material in opposition to the Respondent’s s.399A application, I will determine the s.399A application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. I confirm the Commission has at all times used the telephone number and email address nominated by Mr Hancock in its attempts to contact him. Mr Hancock has not responded to such attempts. Mr Hancock has had the opportunity to engage with the Commission’s processes and prosecute his case. However, Mr Hancock has failed to progress the prosecution of his case and has provided no explanation to the Commission for either his continued failure to comply with the 28 February 2024 Directions, or his failure to attend the Staff Conciliation on 21 February 2024, the Mention on 1 March 2024, and the Non-compliance hearing on 18 March 2024.

1. In all the circumstances of this matter, I am satisfied that I should exercise my discretion under s.399A to dismiss Mr Hancock’s unfair dismissal application. I am satisfied that Mr Hancock unreasonably failed to attend the Non-compliance hearing on 18 March 2024. Mr Hancock was advised of the Non-compliance hearing in advance via contact details he had provided to the Commission and made no response to the Commission’s attempts to contact him before, at the time of or after it. This conduct from Mr Hancock was a repeat of his failure to attend the Mention on 1 March 2024 and the Staff Conciliation on 21 February 2024. Further, I am satisfied Mr Hancock has unreasonably failed to comply with both my direction to respond to the s.399A application and my direction that he file and serve his material for the Arbitration Conference/Hearing by 3.00pm on 15 March 2024. There has at no stage been a response to Commission communications from Mr Hancock that outlines that he has not be able to attend Commission proceedings or comply with directions. This pattern of inaction persuades me that this is a case in which it is appropriate to exercise the discretionary power in s.399A.

1. My determination to exercise my discretion to dismiss Mr Hancock’s unfair dismissal application pursuant to s.399A brings it to an end. An Order[1] to this effect will be issued with this Decision.

DEPUTY PRESIDENT

[1] PR772576.

Printed by authority of the Commonwealth Government Printer

<PR772575>