Christopher Harrison v Freedom Pools & Spas

[2018] FWC 7188

[2018] FWC 7188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Harrison
v
Freedom Pools & Spas
(U2018/8885)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 28 August 2018, Mr Christopher Harrison made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Harrison said his employment had been terminated by Freedom Pools & Spas (FPS) on 9 August 2018.

[2] A Notice of Listing was sent to the parties on 17 September 2018 scheduling the matter for conciliation.

[3] Despite three attempts to telephone Mr Harrison, the conciliation on 9 October 2018 did not proceed because he could not be contacted. The Commission later emailed correspondence to the parties stating that unless Mr Harrison advised that he wished for the matter to proceed to a further conciliation within two working days, the matter would be referred for arbitration.

[4] As Mr Harrison did not contact the Commission, the matter was referred for arbitration and on 18 October 2018, a Notice of Listing was sent to the parties scheduling the matter for an Arbitration Conference/Hearing on 19-21 December 2018. Directions were also issued, which required Mr Harrison to file his material by no later than noon on 12 November 2018 and FPS to file its reply material by no later than noon on 3 December 2018.

[5] On the afternoon of 12 November 2018, the Commission telephoned Mr Harrison in relation to his overdue material. Mr Harrison advised the Commission that he was unable to file his material due to various commitments, and was informed by the Commission that he could make a request for an extension to file his material. Mr Harrison indicated that he would make the request. Following the telephone conversation, the Commission sent an email to Mr Harrison providing a URL link to the Commission’s “About hearings & conferences” page, and drew his attention to the templates available under the heading “Documents for applicants”, advising that they may assist him in preparing his material.

[6] On 13 November 2018, the Commission attempted to telephone Mr Harrison to enquire whether he intended to file his material or make a request for an extension. This was unsuccessful and a voicemail was left seeking his return call. The voicemail also warned Mr Harrison that the matter was at risk of proceeding to non-compliance hearing if he did not respond.

[7] On 14 November 2018, email correspondence was sent to Mr Harrison warning that in the absence of his filing material or making a request for an extension to file material, the matter would be listed for a non-compliance hearing.

[8] As no response was received from Mr Harrison, a Notice of Listing scheduling the non-compliance hearing was sent to the parties on 15 November 2018. Following this, a further telephone attempt was made to Mr Harrison which was unsuccessful, and a voicemail was left seeking his urgent return call.

[9] The non-compliance hearing proceeded before Commissioner Harper-Greenwell on 16 November 2018. Mr Harrison could not be contacted. FPS made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Harrison’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted FPS’s oral application.

[10] Following the non-compliance hearing, correspondence was sent to Mr Harrison’s nominated email and postal addresses advising him of FPS’s s.399A application. The postal correspondence was sent via express post. Mr Harrison was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 21 November 2018. The correspondence also noted that if the Commission did not receive a response, Mr Harrison’s application for relief from unfair dismissal would be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Mr Harrison’s nominated postal address on 20 November 2018.

[11] To date, Mr Harrison has not filed 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] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than the telephone conversation between the Commission and Mr Harrison on 13 November 2018, Mr Harrison has failed to respond to the numerous attempts made by the Commission to contact him. Apart from initially filing his application, Mr Harrison has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with the Commission’s directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Harrison’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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