Casey Summerville v The Lakeside Mill T/A the Lakeside Mill Pty Ltd

[2016] FWC 6581

[2016] FWC 6581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Casey Summerville
v
The Lakeside Mill T/A The Lakeside Mill Pty Ltd
(U2016/7832)

COMMISSIONER WILSON MELBOURNE, 13 SEPTEMBER 2016

Application for relief from unfair dismissal - application dismissed pursuant to section 399A of the Act.

[1] On 20 June 2016, Mr Casey Summerville made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Summerville was employed in the position of General Manager, and his employment was terminated by The Lakeside Mill on 30 May 2016, for reason of serious misconduct. The Respondent objected to the application proceeding because of its assertion that Mr Summerville had not completed the minimum period of employment, as that term is defined under section 383 of the Act. Explicitly, the Respondent contends that it employed 13 employees at the time of the termination, and that Mr Summerville had been employed for less than the requisite 12 month period, with the Applicant commencing employment on 22 February 2016. For his part, Mr Summerville contests this date, arguing he first entered into a verbal agreement of employment with the Respondent in August 2014.

[2] Directions were issued to the parties on 19 July 2016 and the matter was listed for hearing to determine the Respondent’s jurisdictional objection. The hearing was listed for 5 August 2016.

[3] Mr Summerville was directed to file written material in opposition to the jurisdictional objection by noon on Monday, 1 August 2016.

[4] Mr Summerville did not comply with this direction. On 3 August 2016, my Chambers emailed the Applicant seeking compliance with the direction on an urgent basis, as well as an explanation for the non-compliance.

[5] On 4 August 2016, at 9:46 AM, the Respondent, through its solicitors, Pointon Partners, filed an application to dismiss Mr Summerville’s unfair dismissal application pursuant to s.399A of the Act, for reason of Mr Summerville’s failure to comply with a direction of the Commission.

[6] Soon thereafter, at 10:22 AM on 4 August 2016, the Applicant advised my Chambers of personal circumstances that had prevented him from filing material, indicating he would then do so later that day.

[7] Given the proximity to the hearing, which was listed the following day, being 5 August 2016, my Chambers wrote to the parties in the following terms;

“Dear Parties,

…

The Jurisdiction Conference/Hearing listed at Not Before 2 PM tomorrow, Friday 5 August 2016, will proceed as listed. The s.399A application to dismiss Mr Summerville’s unfair dismissal application will be addressed at that time.

The admissibility of any written submissions filed by Mr Summerville will also be a matter to be determined at the Jurisdiction Conference/Hearing tomorrow.

Sincerely,

[Associate to Commissioner Wilson]”

[8] Later on 4 August 2016, at the request of the Respondent, and with the consent of Mr Summerville, the matter was adjourned to 1 September 2016, with video conferencing arrangements put in place for the appearance of Mr Summerville from the Fair Work Commission office in Brisbane. Mr Summerville, also on 4 August, filed in the Commission an outline of argument, two witness statements and some supporting documents.

[9] The matter proceeded on the revised listing date of 1 September 2016. Mr Summerville failed to attend the hearing. My Associate attempted to contact Mr Summerville on his mobile phone on four separate occasions, without success. A voicemail message was left with the Applicant, which to date has not been returned. The hearing commenced in Mr Summerville’s absence, at which the Respondent made a further application to dismiss Mr Summerville’s unfair dismissal application pursuant to s.399A of the Act, on the grounds that the Applicant had unreasonably failed to attend a hearing held by the Commission. That application was received, and compliance with the Fair Work Commission Rules 2013 was waived to the extent necessary.

[10] The hearing was adjourned and, later on 1 September, Mr Summerville was issued correspondence informing him of the Respondent’s most recent s.399A application. Mr Summerville was directed to file submissions and other documentary material in respect of The Lakeside Mill’s application by close of business, 8 September 2016.

[11] Mr Summerville did not file 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] The circumstances of the matter are such that the Respondent has sought Mr Summerville’s application be dismissed on now two grounds within the ambit of s.399A; namely an unreasonable failure to attend a hearing held by the Commission, and an unreasonable failure to comply with a direction of the Commission, in relation to his application.

[14] Consideration of the Respondent’s application does not require determination of matters involving facts the existence of which are in dispute, and so the Commission is not required to hold a hearing in accordance with s.397 of the Act.

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

[16] Notwithstanding Mr Summerville’s explanation for his failure to comply with the directions of the Commission dated 19 July 2016, Mr Summerville has not advanced any material regarding his failure to attend the revised hearing on 1 September, a hearing he plainly was aware of in corresponding with the Commission after the initial adjournment. In the absence of advice from Mr Summerville to the contrary, I find this failure to be unreasonable.

[17] Accordingly there are no grounds upon which I would be persuaded to not exercise my discretion to dismiss Mr Summerville’s application. His application for unfair dismissal remedy will be dismissed, and an Order will be issued in conjunction with this decision to that effect.

COMMISSIONER

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