Daniel Joseph Hall v Condari Pty Ltd
[2022] FWC 3118
•24 NOVEMBER 2022
| [2022] FWC 3118 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Daniel Joseph Hall
v
Condari Pty Ltd
(U2022/9096)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 24 NOVEMBER 2022 |
Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A of the Fair Work Act 2009.
On 8 September 2022, Mr Daniel Hall made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Condari Pty Ltd (the Respondent).
In his Form F2 – Unfair Dismissal Application (Form F2), Mr Hall provided a mobile phone number and an email address, both of which have been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Mr Hall received a response that it was “undeliverable”.
On 16 September 2022, Mr Hall sent an email to the Commission asking for an update on his application. The Commission sent an email in reply to Mr Hall’s enquiry the same day, advising him that his case was with the Unfair Dismissals Team and would be scheduled for a conciliation in due course at which time a Notice of Listing would be sent to the parties with details of the case and the further information required.
On 27 September 2022, a letter was emailed to Mr Hall explaining the conciliation process and attaching a Notice of Listing for a staff conciliation. The letter was headed with an alert “Action required We need to hear from you within 7 days” and went on to say:
“By Tuesday, 4 October 2022 please let us know what phone number you want us to call you on for the conciliation. You can tell us by email at [email protected] or call us on 1800 759 566.”
And later:
“If you don’t wish to take part in conciliation, please let us know by Tuesday, 4 October 2022. If we don’t hear from you by then, the conciliation will go ahead at 09:15 on Tuesday, 25 October 2022.”
A further reminder at the bottom of the letter stated:
“Remember by Tuesday, 4 October 2022:
· Tell us your phone number for conciliation
OR
· Tell us if you don’t wish to take part in conciliation.
Please email [email protected] or call us on 1800 759 566.”
The Notice of Listing also noted:
“Any requests for adjournment of this listing must be made in writing and be based on substantial grounds.
The parties should forward contact telephone numbers to [email protected] within 7 days of receipt of this notice.”
On 20 October 2022, the Commission telephoned Mr Hall and left a voicemail asking him to email the Commission to confirm his contact number for the conciliation. The Commission also sent a letter via email on the same date asking what phone number to call him on and if anyone else would be joining the call with him.
At 6:05am on 25 October 2022, the date of the scheduled conciliation, the Commission received an email from Mr Hall as follows:
“I WILL NO LONGER BE TAKING THIS PHONE CALL TODAY.”
This is the last communication the Commission received from Mr Hall. The telephone conciliation did not proceed. The Commission sent an email in reply, acknowledging receipt of Mr Hall’s email, and stating:
“Please advise the Commission if you wish to discontinue the matter or if you would like the matter to proceed to a formal hearing before a Member.
You must advise the Commission by 4:00 pm today, 25 October 2022.”
There was no response and the matter was then allocated to me on 27 October 2022. That same day I caused an email to be sent to the parties advising them that a telephone mention would take place at 9:30am on Wednesday, 2 November 2022. Mr Hall’s nominated email was used. It was also communicated in the email that a Notice of Listing confirming the details of the mention would be issued, together with Directions dated 27 October 2022 (the Directions) setting out when the parties were required to file their material for the further conduct of Mr Hall’s unfair dismissal application. The Notice of Listing and accompanying Directions were subsequently sent to Mr Hall’s nominated email address.
The mention took place before me at 9:30am on 2 November 2022. Mr Hall could not be contacted, and a voicemail was left for him requesting that he immediately call my Chambers. I confirmed with the Respondent that it had received the Directions and advised that compliance with the Directions by both parties was required.
In accordance with the Directions, Mr Hall was required to file and serve his material by no later than 3:00pm on 15 November 2022. No material was received from Mr Hall by that time. As such, an email was sent from my Chambers to Mr Hall’s nominated email address at 11:16am on 16 November 2022. It outlined that because Mr Hall had not complied with the Directions, the matter was listed for a Non-compliance hearing by telephone on 17 November 2022 at 9:30am. A Notice of Listing was subsequently sent to the parties via email, and they were requested to provide their telephone numbers in advance to ensure they could be contacted for the Non-compliance hearing. Further, a text message was sent to Mr Hall’s nominated mobile phone number advising him that his matter had been listed for a non-compliance hearing at 9:30am on 17 November 2022 and he should refer to the Notice of Listing that had been sent to his email address for further information.
The Non-compliance hearing took place before me on 17 November 2022 at 9:30am. Mr Hall could not be contacted, despite two attempts to call him on the mobile telephone number listed in his Form F2 and the leaving of two voice messages. At the Non-compliance hearing, the Respondent made an oral application pursuant to s.399A of the Act for the matter to be dismissed due to Mr Hall’s failure to attend the Mention on 2 November 2022, his failure to comply with the Directions of the Commission requiring him to file material and his non-attendance at the Non-compliance hearing on 17 November 2022. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.
Immediately following the Non-compliance hearing, correspondence was sent to Mr Hall’s nominated email address advising him of the Respondent’s s.399A application. Mr Hall was directed to file submissions explaining why he had failed to attend the telephone conciliation on 25 October 2022, the Mention on 2 November 2022 and the Non-compliance hearing on 17 November 2022 and further, why he had not complied with the Directions made on 27 October 2022 requiring him to serve his material by 3:00pm on 15 November 2022. It was outlined that a response was required by no later than 3:00pm on 24 November 2022 and if the Commission did not receive a response, the s.399A application would be determined based on the material currently before the Commission. Mr Hall was cautioned that in the absence of a response, his unfair dismissal application would likely be dismissed without further notice.
As at 3:00pm on 24 November 2022, Mr Hall has not filed any material with the Commission in response.
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.
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
As Mr Hall did not file any material in opposition to the Respondent’s application to dismiss, I will determine the s.399A application on the papers.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. As mentioned above, the Commission has at all times used the phone number and email address provided by Mr Hall in its attempts to contact him. Mr Hall has been wholly unresponsive since the file has been allocated to me. His only action since making the unfair dismissal application has been to declare, without explanation, on the morning of the conciliation that he would not be taking the Commission’s phone call that day. Mr Hall has had numerous opportunities to engage with the Commission’s processes and prosecute his case. He has not taken these up. Mr Hall has failed to actively prosecute his case and has provided no explanation to the Commission for either his continued failure to comply with the Directions requiring him to file material or his failure to attend the telephone conciliation on 25 October 2022, the mention on 2 November 2022 and the Non-compliance hearing on 17 November 2022.
By way of contrast, the Respondent has taken the Commission process seriously and has acted with diligence. It obtained legal advice so it could respond to the application made by Mr Hall, complied with the requirements of the Commission and attended both the mention and the Non-compliance hearing. The Commission has not been made aware of any countervailing circumstances impacting on Mr Hall’s capacity to prosecute his case or simply just respond to one of the numerous attempts to contact him. This decision outlines that he has had more than ample opportunity to do so. In the absence of any meaningful participation from Mr Hall, I am left to conclude that he has simply wasted time of the Commission that could otherwise have been spent dealing with applications made by other parties and put the Respondent to unnecessary effort and expense.
In the circumstances of this matter, I am satisfied that Mr Hall has acted unreasonably and that I should exercise my discretion under s.399A to dismiss his unfair dismissal application. This ends Mr Hall’s unfair dismissal application.
An Order to this effect will be issued with this Decision.
DEPUTY PRESIDENT
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