Cliff Walker v The Trustee for Alderson Business Trust T/A Kings Creek Hotel

[2019] FWC 6073

[2019] FWC 6073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cliff Walker
v
The Trustee for Alderson Business Trust T/A Kings Creek Hotel
(U2019/4380)

COMMISSIONER BISSETT MELBOURNE, 30 AUGUST 2019

Application for an unfair dismissal remedy - application dismissed pursuant to s.399A of the Act.

[1] On 18 April 2019 Mr Cliff Walker (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). Mr Walker said that his employment had been terminated by The Trustee for Alderson Business Trust T/A Kings Creek Hotel (Respondent) on 27 March 2019.

[2] The matter was listed for conciliation on 4 July 2019, but was unable to go ahead due to the unavailability of the Applicant, who sought an adjournment to a date from 4 July 2019. The conciliation was rescheduled to Friday 5 July 2019, but was adjourned at the request of the Respondent due to their unavailability on that date. The conciliation was rescheduled again to 26 July 2019. A Notice of Listing was sent to the parties on 4 July 2019 confirming the rescheduled conciliation details for 26 July 2019.

[3] Despite several attempts to telephone the Applicant on 26 July 2019, the conciliation did not proceed due to the Applicant’s failure to attend.

[4] On 30 July 2019 directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 23 to 25 September 2019. The Applicant was directed to file his material by no later than noon on Friday 16 August 2019. No such material was received.

[5] At 6.21pm on 16 August 2019 correspondence was sent by the Commission to the Applicant’s nominated email address regarding his failure to file his material by the required date. The Applicant was asked to advise the Commission when he intended to file his submissions. The Applicant failed to respond to the Commission’s correspondence.

[6] On 20 August 2019 at 3.04pm the Commission attempted to call the Applicant in regard to his overdue material. The Applicant did not answer the call and a voicemail message was left reminding him of the overdue material and requesting a return call. The Applicant failed to return the Commission’s call.

[7] At 4.09pm on 20 August 2019 further correspondence was emailed to the Applicant in regard to his overdue material. He was requested to contact the Commission by noon on Wednesday, 21 August 2019 to advise if he intends to file submissions or wishes to discontinue his matter. The correspondence stated that if the Commission did not receive a response, his matter was at risk of being listed for a non-compliance hearing on 23 August 2019.

[8] On 21 August 2019, as no response from the Applicant had been received by the Commission, a Notice of Listing was issued to the parties scheduling a Non-Compliance Hearing for 23 August 2019.

[9] The Non-Compliance Hearing proceeded before Commissioner Harper-Greenwell on 23 August 2019. The Applicant could not 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 directions of the Commission. Commissioner Harper-Greenwell waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[10] Following the hearing, correspondence was sent to the Applicant’s nominated email 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 10.00am on 27 August 2019. This correspondence stated that if the Commission did not receive a response, the Applications application for relief from unfair dismissal would very likely be dismissed without further notice.

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

[12] 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.

[13] 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.

[14] 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 and has provided no explanation to the Commission for his failure to comply with the directions of the Commission. 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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