Charlie Cooper v Cape Pty Ltd

[2017] FWC 7000

[2017] FWC 7000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charlie Cooper
v
Cape Pty Ltd
(U2017/9773)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 8 September 2017, Mr Charlie Cooper made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was filed by Mr Cooper’s representative from Rochforts Workplace Solutions. Mr Cooper said he was notified of his dismissal on 19 August 2017, with it taking effect the same day.

[2] The matter was initially listed for conciliation on 4 October 2017, however following an adjournment request from Cape Pty Ltd (Cape), the conciliation was re-listed for 16 October 2017. The matter did not resolve at conciliation.

[3] On 24 October 2017, parties were sent a Notice of Listing which advised the Conference/Hearing dates and also provided the directions for the filing of material. Mr Cooper was directed to file an outline of submissions, witness statements and any other documentary material by no later than noon on 13 November 2017.

[4] On 13 November 2017, Rochforts Workplace Solutions filed a Form F54 – Notice of Representative Ceasing to Act. Later that day and the following day, the Fair Work Commission attempted to telephone Mr Cooper regarding his overdue submissions, however there was no answer and voicemail messages were left. Following the last phone call, an email was sent to Mr Cooper’s nominated email address requesting advice be given as to when submissions would be filed. It was noted in the absence of a response, the matter may be listed for a non-compliance hearing on 17 November 2017.

[5] On 15 November 2017, another telephone call was made to Mr Cooper and a voicemail message left which advised if no material was received by 2.00pm that day, the matter would be listed for non-compliance hearing on 17 November 2017. Later that day, in the absence of a response from Mr Cooper, a non-compliance hearing was listed for 17 November 2017, with Mr Cooper notified via email.

[6] The non-compliance hearing proceeded before Commissioner Bissett on 17 November 2017. Mr Cooper attended the hearing and said he had been away from home for six weeks for work in a rural location. He said no phones were allowed at work and there is no reception after work. Mr Copper said he would be back in Perth on Monday, 20 November 2017 and would find a new representative that day. Commissioner Bissett asked that details of the new representative be provided to the Commission on 20 November 2017 and the Commissioner varied the directions, giving Mr Cooper a further two weeks to file material. It was noted that the hearing dates would need to be adjusted to allow for the material to be filed by both parties.

[7] On 23 November 2017, a Notice of Listing was sent to Mr Cooper via email and post. The new Conference/Hearing dates were advised and Mr Cooper was given until noon on 7 December 2017 to file his material.

[8] On 28 November 2017, the Commission attempted to telephone Mr Cooper to explain the new submission dates, however there was no answer and a voicemail message was left.

[9] On 1 December 2017, an SMS message was sent to Mr Cooper, reminding him that his material was due to be filed the coming Thursday, 7 December 2017.

[10] On 7 December 2017, as no material had been filed, an attempt to call Mr Cooper was made, with another voicemail message being left. The following day, an email was sent requesting advice be given as to when submissions would be filed. It was noted in the absence of a response, the matter may be listed for a non-compliance hearing.

[11] On 11 December 2017, an attempt to telephone Mr Cooper was made and another voicemail message was left. An SMS message was also sent, requesting a return call as soon as possible.

[12] On 12 December 2017, Mr Cooper was sent an email confirming no material had been received and if there was no response to the Commission, the matter would be listed for non-compliance hearing on 15 December 2017. The following day, another voicemail message was left for Mr Cooper which advised the matter would be listed for a non-compliance hearing. A non-compliance hearing was listed for 15 December 2017, with Mr Cooper notified via email and post.

[13] The non-compliance hearing proceeded before Deputy President Colman on 15 December 2017. Three attempts were made to contact Mr Cooper, however there was no answer. Cape made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Cooper had failed to comply with a direction of the Commission. Deputy President Colman waived compliance with the Fair Work Commission Rules 2013 and accepted Cape’s oral application. Correspondence was then sent to Mr Cooper informing him of Cape’s s.399A application. Mr Cooper was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 20 December 2017. This correspondence was sent via email and express post, of which the tracking number indicates was successfully delivered at 9.25am on 20 December 2017.

[14] To date, Mr Cooper has not filed any material with the Commission.

[15] 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.

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

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

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Cooper was granted an extension to file material following a non-compliance hearing on 17 November 2017. Since the non-compliance hearing before Commissioner Bissett, Mr Cooper has failed to respond to the many attempts by the Commission to contact him. That was the only occasion on which Mr Cooper responded to any of the twenty instances of communication from the Commission that have occurred since his former representative ceased acting. He 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 beforeDeputy President Colman on 15 December 2017. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Cooper’s application.

[19] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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