Damien Shipley v Bindaree Beef - [2011] FWA 2865

[2011] FWA 2865

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Damien Shipley
v
Bindaree Beef
(U2010/13788)

COMMISSIONER MCKENNA

SYDNEY, 12 MAY 2011

Application for an unfair dismissal remedy - failure to prosecute - application dismissed.

[1] On 1 November 2010, Damien Shipley (“the applicant”) filed an application for an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) with respect to the termination of his employment with Bindaree Beef (“the respondent”). It is not clear whether the employing entity was “Northwest Meat Processors P/L T/A Bindaree Beef” or “Bindaree Beef Pty Limited”, but nothing appears to turn on the determination of that matter for the purposes of this decision and a representative for Bindaree Beef has participated in the proceedings to date.

[2] The applicant was formerly employed by the respondent as a slaughterman at its premises at Inverell in regional New South Wales. While it is again not entirely clear, the file papers suggest the applicant did not attend work for a period of time from after 23 June 2010 due to circumstances related to the lengthy hospitalisation in Sydney of his new-born twin children.

[3] The initiating process filed by the applicant indicated the dismissal took effect on 26 August 2010, without any reason or advice being given. For its part, the respondent, in its employer’s response, indicated its view that the applicant had abandoned his position in that he had not worked for the respondent since 23 June 2010 and had not contacted the respondent during a prolonged absence - with the result that, on 1 September 2010, written advice of termination of employment was sent to the applicant in the following terms:

“Our records show that you have not attended for work since the [sic] 23.6.2010. Since you have not made any contact with Bindaree Beef, under the circumstances the company cannot continue to hold your position open and has no alternative but to terminate your employment”.

[4] In addition to filing this application seeking an unfair dismissal remedy on 1 November 2010, the applicant also simultaneously filed an application pursuant to s.365 of the Act to deal with alleged contraventions involving dismissal by the respondent. In Fair Work Australia correspondence dated 3 November 2010, the applicant was advised as follows:

“Fair Work Australia (FWA) received the following applications from you in relation to the termination of your employment by Bindaree Beef.

U2010/13788 - application for an alleged unfair dismissal under s394 of the Fair Work Act 2009;

and

C2010/5424 - application to FWA to deal with an alleged contravention dispute involving dismissal under s365 of the Fair Work Act 2009.

FWA is unable to proceed with both applications as the Fair Work Act 2009 prevents a person from simultaneously making multiple applications relating to their dismissal from employment.

As a result, it will be necessary for you to decide which of the above applications you intend to proceed with, and to notify FWA within 14 days from the date of this letter, of your decision.

If you have not provided a response to FWA by that date, it will be assumed that you wish to proceed with the unfair dismissal application (s394) and the other application will be taken to have been withdrawn. If the application fee of $60.60 has been paid for the matter withdrawn, you will be refunded. If the application fee has not been paid, please provide payment or return the enclosed application for waiver of the lodgement fee. If payment or completed waiver is not received within 14 days from the date of this letter, the application may be closed.

If you require further assistance, please contact Fair Work Australia on (03) 8661 7777 or go to the Fair Work Australia website at [Bold in original]

[5] A file note dated 15 November 2010 indicates that the applicant advised an employee of Fair Work Australia he had received the letter dated 3 November 2010 and would be sending a response directly. A file note dated 30 November 2010 notes that further contact was made with the applicant concerning a response to the letter dated 3 November 2010 and the applicant advised he would respond by 3 December 2010. There is no record on the file of any response having been received from the applicant and, on 4 February 2011, a member of Fair Work Australia determined that the file concerning the application made under s.365 of the Act should be closed.

[6] By letter dated 8 February 2011, Fair Work Australia then advised the applicant that the application fee for this application had been waived on hardship grounds, pursuant to a waiver application received on 1 November 2010. Further, in a notice of listing dated 10 February 2011, the parties were advised that the application under s.394 of the Act would be listed for conciliation at 9.15am on 1 March 2011, by telephone, before a Fair Work Australia conciliator. The notice of listing advised the parties that any requests for an adjournment of the listing must be made in writing and be based on substantial grounds.

[7] On 21 February 2011, the respondent filed an employer’s response to the application for an unfair dismissal remedy noting the late filing of the application in response to the question concerning jurisdictional or other objections.

[8] A file note records that on 22 February 2011, the applicant contacted Fair Work Australia to update his contact details; he had relocated from New South Wales to Queensland.

[9] A file note records that on 1 March 2011 a voicemail message was received in the Fair Work Australia offices from a caller identified as the applicant’s “girlfriend” advising that the applicant could not participate in the teleconference conciliation due to work commitments; a further file note indicates that advice was given to the applicant’s girlfriend that a request for an adjournment would need to be made in writing, stating substantial reasons.

[10] The conciliator’s report suggests the teleconference proceeded as listed with representation noted for the respondent, but without the participation of the applicant; and that matters relevant to future processing preferences were discussed with the respondent’s representative. The conciliator’s report further noted that the application was lodged more than fourteen days after the dismissal and the respondent objected to an extension of time.

[11] On 29 March 2011, the application was allocated to me and, by notices of listing dated 30 March 2011, the parties were advised the matter would be listed for mention/directions, by telephone, on 11 April 2011. As the endeavours to telephone the applicant on the numbers provided were unsuccessful, my Associate also wrote to the applicant on 30 March 2011 to advise him of the purpose of the listing and to request that he urgently provide his current contact details. Although attempts to contact the applicant by telephone about the listing were unsuccessful and there was uncertainty about whether he was aware of the listing, the applicant contacted my Associate about a half an hour before the listing of the application on 11 April 2011 to advise of a telephone number and to confirm that any correspondence should be sent to the Queensland address already provided.

[12] At the listing on 11 April 2011, the applicant and Mr M Bayes, the respondent’s Human Resources Manager, appeared by telephone. I made ex tempore directions, relevantly providing that the applicant was to file and serve his materials in support of an extension of time by no later than 4.00pm on 2 May 2011. Signed and sealed copies of those directions were also sent to the parties on 11 April 2011.

[13] The applicant did not file and serve his materials by the date specified in the directions.

[14] On 4 May 2011, Mr Bayes forwarded an emailed communication to my Associate noting that the applicant had not complied with the directions and relevantly seeking that the application be “struck out”.

[15] On 5 May 2011, on my instructions, my Associate telephoned the applicant concerning the non-compliance with the directions and was informed by the applicant that he intended to file his materials by 9 May 2011, by facsimile transmission. That same day, I caused correspondence to be forwarded to the applicant noting his advice that he intended to file and serve his materials by facsimile transmission by 9 May 2011 and also drawing attention to cl.5 of the directions given on 11 April 2011, which dealt with the making of an application for a variation to the directions.

[16] The applicant did not, as he had foreshadowed, effect a late filing of any materials by 9 May 2011, and nor has any application or communication since been received from the applicant.

[17] In the time since the application has been allocated to me, the applicant did not comply with the directions given on 11 April 2011; the applicant did not initiate any communication with Fair Work Australia concerning his non-compliance with the directions given on 11 April 2011; the applicant did not effect a late filing of materials by 9 May 2011 (being the date the applicant nominated to my Associate after she contacted the applicant concerning his non-compliance with the directions given on 11 April 2011); and the applicant has not made an application, pursuant to cl.5 of the directions given on 11 April 2011, for any variation to the directions. More generally, as to the time preceding the allocation of the application to me, the file record indicates that the applicant, for example, did not attend to matters including providing a response to Fair Work Australia correspondence dated 3 November 2010 despite follow-up contact by staff of Fair Work Australia and did not to participate in the telephone conference proceedings before a Fair Work Australia conciliator.

[18] As things presently stand, the applicant has not complied with directions and he has not sought a variation to the directions. Having regard to this and the history of matters, I have determined to dismiss this application for want of prosecution. An order dismissing the application has been issued in conjunction with the publication of this decision.

COMMISSIONER

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