Daniel Van Kuyk v Executive Risk Solutions (Staffing Solutions) Pty Ltd T/A Executive Risk Solutions

[2020] FWC 355

[2020] FWC 355

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Van Kuyk
v
Executive Risk Solutions (Staffing Solutions) Pty Ltd T/A Executive Risk Solutions
(U2019/12336)

COMMISSIONER BISSETT MELBOURNE, 4 FEBRUARY 2020

Application for an unfair dismissal remedy – s.399A application to dismiss.

[1] On 5 November 2019 Mr Daniel Van Kuyk (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Executive Risk Solutions (Staffing Solutions) Pty Ltd T/A Executive Risk Solutions (Respondent) on 18 October 2019.

[2] A Notice of Listing was issued to the parties on 7 November 2019 scheduling a telephone conciliation on 28 November 2019.

[3] On 27 November 2019 the Commission sent an SMS message to the parties’ nominated telephone number reminding them of the conciliation for the following day.

[4] The conciliation on 28 November 2019 did not proceed as scheduled due to the Applicant failure to attend. Subsequently the Commission sent correspondence to the parties’ nominated email address advising that if a request for a further conciliation was not received within two working days, the matter would be referred for arbitration. No request was received.

[5] On 5 December 2019 the Commission issued Directions to the parties and the matter was listed for Arbitration Conference/Hearing on 4-6 February 2020. The Applicant was directed to file his material by no later than noon on 7 January 2020. No submissions were received from the Applicant by the due date.

[6] Later that day the Commission telephoned The Australian Workers’ Union (Applicant’s representative) regarding the Applicant’s late submissions. The Applicant’s representative answered the call and advised that he had not received the Notice of Listing containing the Directions. The Applicant’s representative was advised that the Applicant would need to make a request for an extension of time to file the material.

[1] Later that same day the Commission sent correspondence to the Applicant’s representative which was also copied to the Applicant regarding the Applicant’s failure to file submissions by the required date. The correspondence required the Applicant’s representative to advise the Commission when they intended to file submissions.

[2] On 16 December 2019 the Applicant’s Representative wrote to the Commission confirming that the Notice of Listing containing the Directions had not been forwarded to him as the contact person listed on the Form F2 application form. The Applicant’s Representative said that “[t]he Notice of Listing appears to indicate who the document was emailed to and I am not listed amongst the recipients” [the Notice of Listing was emailed to the National Secretary, The Australian Workers’ Union].

[3] Further email correspondence was received from the Applicant’s representative on 18 December 2019. The Applicant’s representative advised that he was going to be on annual leave until 3 January 2019 [sic] and requested an extension of time until 14 January 2020 to file the Applicant’s submissions.

[4] On 20 December 2019 the Commission issued a Notice of Listing containing Amended Directions to the parties. The Applicant was directed to file his material by no later than 24 December 2019. On 30 December 2019 the Notice of Listing was reissued correcting an administrative error.

[5] On 30 December 2019 the Commission attempted to contact the Applicant’s representative regarding the Applicant’s late submission however there was no answer. A voice message was left advising the Applicant’s representative that the matter was at risk of being listed for a Non-Compliance Hearing.

[6] On the same day the Commission sent correspondence to the Applicant’s representative which was copied to the Applicant regarding the Applicant’s failure to file submissions by the required date. The correspondence required the Applicant’s representative to advise the Commission by no later than 10.00 am on 31 December 2019 when the Applicant intended to file his submissions.

[7] On review of the file it was noted that the Applicant’s representative was still on leave. Accordingly, on 31 December 2019 the Practice Lead granted the Applicant an extension of time until 7 January 2020 to file his submissions. A Notice of Listing and Amended Directions was sent to the parties to this effect. The Notice of Listing also stated that if the Applicant did not comply with the amended directions the matter may be listed for a Non-Compliance hearing on Friday, 10 January 2020.

[8] On 8 January 2020 the Commission telephoned the Applicant’s representative to discuss the Applicant’s late submissions and to advise that the matter may proceed to a Non-Compliance hearing. The Applicant’s representative advised that he had no update for the Commission.

[9] As no material had been filed, the matter was listed for Non-Compliance Hearing on 10 January 2020. The Non-Compliance Hearing proceeded before Commissioner Bissett. The Applicant’s representative attended the hearing however the Applicant did not attend. 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 the direction of the Commission. The Commissioner waived compliance of the Fair Work Commission Rules 2013 and accepted the Respondent’s application.

[10] Following the Non-Compliance Hearing, correspondence was sent to the Applicant’s nominated email address advising him of the Respondent’s s.399A application. The correspondence directed the Applicant to file submissions and other documentary material in respect of the s.399A application by no later than 4.00 pm on 17 January 2020. The Applicant was also advised that if no response was received his application will be dismissed without further notice. The Applicant did not file any submissions by the due date.

[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 make a request for an extension to file material and has not provided an explanation to the Commission for his failure to comply with the directions of the Commission.

[15] 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 with this decision.

COMMISSIONER

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