Christopher Di Bella v Dynamic Bradview Roofing

[2020] FWC 80

[2020] FWC 80

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Di Bella
v
Dynamic Bradview Roofing
(U2019/9328)

COMMISSIONER BISSETT MELBOURNE, 8 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 28 August 2019 Mr Christopher Di Bella (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Dynamic Bradview Roofing (Respondent) on 5 August 2019.

[2] The matter was listed for conciliation on 23 September 2019 however the conciliation could not proceed as the Applicant and Respondent were not available.

[3] The Commission emailed correspondence to the Applicant’s nominated email address on 23 September 2019 advising the conciliation was not able to proceed. Later that day the Applicant called the Commission to advise that he was unable to attend the conciliation as he was working. He advised that his preference was for the conciliation to be relisted for a later timeslot.

[4] The matter was relisted for conciliation on 29 October 2019 however this conciliation could not proceed as the Respondent was not available.

[5] On 30 October and 1 November 2019 the Commission attempted to contact the Applicant on his nominated telephone number to attempt to arrange a further conciliation. Two voicemail messages were left requesting a return call.

[6] On 4 November 2019, as no reply from the Applicant was received, the matter was referred to be listed for Conference/Hearing. Directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 13 – 15 January 2020. The Applicant was directed to file his material by no later than noon on 25 November 2019. No such material was received.

[7] On 18 November 2019 the Commission emailed correspondence to the Applicant and Respondent advising that the matter was to be listed for a Member Assisted Conciliation. That correspondence requested the parties provide any unavailable dates by 20 November 2019. The Respondent provided this information by email on 18 November 2019 with the Applicant’s nominated email address carbon copied into this email correspondence. No response was received from the Applicant.

[8] On 25 November 2019 the Commission contacted the Applicant on his nominated telephone number to discuss his overdue material. The Applicant advised that he had forgotten his material was due. The Commission explained the process of making a request for an extension of time to file material, explained the non-compliance process, and the urgency of making this request. The Commission confirmed with the Applicant that he had the correct email address to send this request to.

[9] No such extension request was received.

[10] On 26 November 2019 the Commission emailed correspondence to the Applicant’s nominated email address advising that his material was overdue and requesting that the Applicant contact the Commission by noon on 27 November 2019 to advise when he intended to file his material. That correspondence also advised that the matter was at risk of being listed for a Non-Compliance Hearing.

[11] On 27 November 2019 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left advising that the matter was being listed for a Non-Compliance Hearing. The Commission requested an urgent call back to discuss the overdue material and to seek confirmation regarding whether the Applicant wanted to pursue his unfair dismissal matter.

[12] Later that day, as no response from the Applicant was received, a Notice of Listing was issued to the parties scheduling a Non-Compliance Hearing for 29 November 2019.

[13] On 28 November 2019 the Commission contacted the Applicant on his nominated telephone number to discuss the Non-Compliance Hearing. The Commission explained why the matter was listed for the Non-Compliance Hearing, the purpose of the Hearing and what will occur at the Hearing. The Applicant confirmed that he wished to pursue his unfair dismissal matter and that he will attend the Non-Compliance Hearing on his nominated telephone number.

[14] The Non-Compliance Hearing proceeded before Deputy President Colman on 29 November 2019. The Applicant attended the Hearing on his nominated telephone number. The Applicant advised he had been unable to file his material as he had been busy with work and working long hours. The Deputy President granted the Applicant an extension to file material until 5 December 2019.

[15] Later that day an amended Notice of Listing was issued to the parties advising that the Arbitration Conference/Hearing remained listed for 13 – 15 January 2020 and that the Applicant was now directed to file his material by no later than noon on 5 December 2019.

[16] No such material was received from the Applicant.

[17] On 9 December 2019 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left advising his material was overdue and requesting a return call or the matter would proceed to a Non-Compliance Hearing.

[18] On 10 December 2019 the Commission sent a SMS message to the Applicant’s nominated mobile telephone number advising that the Commission had attempted to contact him regarding his unfair dismissal application. The SMS message provided the Commission’s telephone number and requested a return call as soon as possible.

[19] On 11 December 2019, as no response from the Applicant was received, a Notice of Listing was issued to the parties scheduling a further Non-Compliance Hearing for 13 December 2019.

[20] On 12 December 2019 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left advising that the matter had been listed for a Non-Compliance Hearing to proceed by telephone on the following day and requested a return call to discuss whether the Applicant wished to pursue his unfair dismissal matter.

[21] The Non-Compliance Hearing proceeded before Deputy President Clancy on 13 December 2019. The Applicant did not attend. The Commission attempted to contact the Applicant twice on his nominated telephone number but he was unable to be contacted. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with the directions of the Commission. Deputy President Clancy waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[22] On 13 December 2019, following the Non-Compliance Hearing, correspondence was sent to the Applicant’s nominated email address and by express post to the Applicant’s nominated postal address advising him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by no later than 4.00 pm on 20 December 2019. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice

[23] To date, the Applicant has not filed any material with the Commission.

[24] 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.

....

(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.

[25] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[26] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact him. The Applicant and has not provided an explanation to the Commission for his failure to comply with the directions of the Commission issued on 29 November 2019 or his failure to attend the Non-Compliance Hearing on 13 December 2019.

[27] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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