Christopher Buckley v Calstores Pty Ltd
[2018] FWC 7557
•21 DECEMBER 2018
| [2018] FWC 7557 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Buckley
v
Calstores Pty Ltd
(U2018/8839)
| DEPUTY PRESIDENT BINET | PERTH, 21 DECEMBER 2018 |
Application for an unfair dismissal remedy – failure to comply with directions – application to dismiss pursuant to s.399A – application dismissed.
On 28 August 2018, Mr Christopher Buckley (Mr Buckley) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging he was unfairly dismissed by Calstores Pty Ltd (Caltex).
On 14 September 2018, Caltex filed a Form F3 Employer Response, noting it had no jurisdictional objections to the Application.
On 25 September 2018, the parties attended a telephone conciliation with a staff conciliator, but the issues in dispute could not be resolved. The Application was then allocated to Deputy President Binet.
The parties attended a conciliation conference on 11 October 2018. At the conference Mr Buckley was informed that if the Application was not resolved and that directions were issued for the hearing and determination of the Application, that he must comply strictly with the deadlines contained in those directions or the Application could be dismissed.
Following the conference, a settlement offer was made to Mr Buckley on 12 October 2018. On 15 October 2018, Mr Buckley sought further explanation regarding the settlement sum. This explanation was provided to Mr Buckley by Caltex’s representative on 18 October 2018. Mr Buckley was requested to advise by close of business 22 October 2018 whether the settlement offer was acceptable. No further correspondence was received from Mr Buckley and the Application was not discontinued.
On 25 October 2018, directions outlining dates for the submission of materials by the parties were issued for the hearing of the matter (Directions).
Mr Buckley was required to file submissions and any evidence or documentation in support of his Application by 1 November 2018. No submissions were received by that date, or a request for an extension, or any reasons for a delay in filing his materials.
On Monday 5 November 2018 at 9:25am, Chambers emailed the parties noting that Mr Buckley had not filed the materials as required by the Directions. Caltex were invited to apply by 12 noon on Wednesday 7 November 2018 for the Application to be dismissed pursuant to section 399A of the FW Act (Dismissal Application). Mr Buckley was invited to make written submissions in response to the Dismissal Application by close of business on Thursday 8 November 2018. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the Dismissal Application.
On 6 November 2018, Mr Buckley emailed Chambers to advise he wished to make oral submissions and for those submissions to be withheld from Caltex. On 7 November 2018, Mr Buckley was informed by Chambers that if he wished to make any oral submissions in addition to his written submissions, the Dismissal Application would be listed for a Hearing and that if he sought to have any of his materials treated confidentially, he could apply for a confidentiality order. He was informed that any application for a confidentiality order should be filed by close of business on Thursday 8 November along with any written submissions opposing the Dismissal Application.
On 7 November 2018, Caltex filed with Chambers and served on Mr Buckley an application for the matter to be dismissed pursuant to section 399A of the FW Act on the grounds that Mr Buckley unreasonably failed to comply with a direction of the FWC when he failed to file his materials in accordance with the Directions.
On Thursday 8 November 2018, Mr Buckley advised Chambers that he did not require an oral hearing. Chambers subsequently confirmed this with Mr Buckley in writing. Later the same day, Mr Buckley filed his response to the Dismissal Application.
In response to the Dismissal Application Mr Buckley submitted that the Application should not be dismissed because his dismissal had resulted in him suffering “extreme poverty” preventing him purchasing medication to treat symptoms which he says that he acquired as a consequence of his employment with Caltex. According to Mr Buckley the symptoms prevent him from following directives or processing information. Mr Buckley says that his symptoms were further aggravated by the stress associated with the contemporaneous illness of two family members. Mr Buckley says that he was first prescribed the medication on 26 September 2018. He says he ran out of medication on or around 25 October 2018 but could not afford additional repeats and was unaware until 6 November 2018 that he could obtain the medication for free.
A confidentiality order in relation to the personal information contained in Mr Buckley’s response was issued on 9 November 2018.
Section 399A of the FW 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.
Note 1: for another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(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.”
Mr Buckley says that he ran out of medication on the day the Directions were issued. However in the 11 days between the date that the Directions were issued and the day on which the parties were informed that Caltex would be invited to apply to have the Application dismissed, Mr Buckley made no effort to contact Chambers to request a filing extension or an adjournment of the Application.
Mr Buckley asserts that he made an effort to prepare an outline of submissions however he tendered no evidence of doing so.
Mr Buckley has provided no medical evidence that his symptoms prevented him complying with the Directions. Nor has he provided any evidence that he was incapacitated during this period, for example by being admitted to hospital.
Based on the material filed by the parties, I am satisfied that Mr Buckley has unreasonably failed to comply with directions issued by the FWC in relation to his Application.
On the application of Caltex and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application. An order to this effect (PR703526) will be issued with this decision.
DEPUTY PRESIDENT
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