Daniel Heard v Skillhire Pty Ltd

[2018] FWC 5633

[2018] FWC 5633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Heard
v
Skillhire Pty Ltd
(U2018/5034)

DEPUTY PRESIDENT CLANCY MELBOURNE, 12 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] On 15 May 2018, Mr Daniel Heard 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).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Heard stated that he was notified of his dismissal by Skillhire Pty Ltd (Skillhire) on 24 April 2018, and that it took effect on the same day. Mr Heard also included the details of his representative in the Form F2.

[3] On 21 May 2018, a Notice of Listing was sent to the parties scheduling a conciliation for 14 June 2018.

[4] On 8 June 2018, the Commission attempted to telephone both Mr Heard and his representative to confirm their preferred contact numbers for the upcoming conciliation. However, both attempts were unsuccessful due to the phone numbers being disconnected. Following this, correspondence was emailed to Mr Heard and his representative seeking their response.

[5] On 13 June 2018, a SMS was sent to the parties reminding them of the conciliation scheduled the next day. A further attempt was also made to telephone Mr Heard, whose phone number was no longer disconnected, and a voicemail was left seeking his urgent return call.

[6] On 14 June 2018, the conciliation did not proceed due to operational reasons and was rescheduled to 28 June 2018, which the parties were notified of via an amended Notice of Listing. Later the same day, the Commission attempted to telephone Mr Heard on two occasions to advise him of the rescheduled conciliation. These were unsuccessful and voicemails were left on both occasions seeking Mr Heard’s urgent return call.

[7] An email from Mr Heard’s representative was received on 14 June 2018, providing the preferred contact numbers for the rescheduled conciliation.

[8] On 27 June 2018, a SMS was sent to the parties reminding them of the conciliation scheduled the next day. Following this, the Commission received an email from Mr Heard’s representative seeking an adjournment of the conciliation.

[9] On 28 June 2018, the Commission emailed correspondence to Mr Heard’s representative refusing her request for an adjournment. Mr Heard’s representative subsequently provided evidence of her inability to attend the conciliation and as a result, the conciliation was cancelled until further notice.

[10] On 3 July 2018, an amended Notice of Listing was sent to the parties rescheduling the conciliation for 10 July 2018.

[11] On 5 July 2018, the Commission attempted to telephone Mr Heard and his representative by telephone. Both attempts were unsuccessful as Mr Heard’s phone number was disconnected, but a voicemail was left with his representative, seeking her return call. Further emails were sent to both Mr Heard and his representative to seek their preferred contact numbers for conciliation.

[12] On 10 July 2018, the conciliation could not proceed because Mr Heard was unable to be contacted due to his phone number remaining disconnected. Mr Heard’s representative was also unable to be reached, and a voicemail was left for her return call. The Commission later emailed correspondence to the parties stating that unless Mr Heard advised that he wished for the matter to proceed to a further conciliation within two working days, the matter would be referred for arbitration.

[13] On 12 July 2018, as neither Mr Heard nor his representative had contacted the Commission, correspondence was emailed to the parties notifying them that the matter had been referred for arbitration.

[14] On 13 August 2018, a Notice of Listing was sent to the parties scheduling the matter for an Arbitration Conference/Hearing on 1-3 October 2018 and issuing directions for the filing of material. Mr Heard was directed to file his material by no later than noon on 20 August 2018 and Skillhire was directed to file its reply material by no later than noon on 10 September 2018.

[15] On 22 August 2018, the Commission emailed correspondence to Mr Heard and his representative to advise that if he did not file his material or seek an extension for the filing of his material by 12:00pm on 23 August 2018, the matter would be listed for a non-compliance hearing on 24 August 2018.

[16] As no contact was received from Mr Heard or his representative, a Notice of Listing was sent to the parties on 23 August 2018 scheduling the non-compliance hearing for 24 August 2018.

[17] The non-compliance hearing on 24 August 2018 could not proceed before Commissioner McKinnon as neither Mr Heard, his representative or Skillhire were able to be contacted. Later the same day, Skillhire made an application pursuant to s.399A of the Act that the matter be dismissed for reasons including Mr Heard’s failure to attend the conciliation, failure to comply with a direction of the Commission and failure to attend the non-compliance hearing.

[18] On 27 August 2018, correspondence was sent to Mr Heard, via email and express post, informing him of Skillhire’s s.399A application. The correspondence was also sent to Mr Heard’s representative via email. Mr Heard was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 3 September 2018. The correspondence further stated that if the Commission did not receive a response, Mr Heard’s application for relief from unfair dismissal would be dismissed. A review of the express post tracking ID indicates that the correspondence was received by Mr Heard on 29 August 2018.

[19] On 4 September 2018, as no response was received from Mr Heard or his representative, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing scheduled for 1-3 October 2018.

[20] To date, Mr Heard has not filed any material with the Commission.

[21] 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.

[22] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[24] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Heard has failed to respond to the numerous attempts made by the Commission to contact him. Apart from initially filing his application and a number of emails from his representative during the conciliation stage of the matter, Mr Heard has shown no willingness to prosecute his case and has provided no explanation for either his failure to comply with directions or his non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Heard’s application.

[25]
An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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