Danyan Forster v Trimatic Management Services Pty Ltd T/A TSA Telco Group

[2018] FWC 7218

[2018] FWC 7218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Danyan Forster
v
Trimatic Management Services Pty Ltd T/A TSA Telco Group
(U2018/8610)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 21 August 2018, Mr Danyan Forster 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). Mr Forster said his employment had been terminated by Trimatic Management Services Pty Ltd T/A TSA Telco Group (TSA) on 1 August 2018.

[2] The matter was initially scheduled for conciliation on 21 September 2018 but at the request of TSA, the conciliation was rescheduled to 4 October 2018. Notices of Listing were sent to the parties to notify them of both the initial schedule and the subsequent reschedule.

[3] The conciliation on 4 October 2018 did not proceed because Mr Forster could not be contacted, despite three attempts to telephone him. The Commission later emailed correspondence to the parties stating that unless Mr Forster advised that he wished for the matter to proceed to a further conciliation within two working days, the matter would be referred for arbitration.

[4] On 12 October 2018, as Mr Forster did not contact the Commission, a Notice of Listing was sent to the parties scheduling the matter for an Arbitration Conference/Hearing on 18-20 December 2018. Directions were also issued, which required Mr Forster to file his material by no later than noon on 5 November 2018 and TSA to file its reply material by no later than noon on 26 November 2018.

[5] At the request of TSA, the Arbitration Conference/Hearing was first rescheduled to 5-7 December 2018, and then to 3-5 December 2018. Amended Notices of Listing were sent to the parties on 16 and 22 October 2018 to notify them of both changes. Amended directions were also issued on 16 October 2018, requiring Mr Forster to file his material by no later than noon on 2 November 2018 and TSA to file its reply material by no later than noon on 16 November 2018.

[6] The Commission attempted to telephone Mr Forster on three occasions on 16-17 October 2018 to discuss with him the effect of the amended Notice of Listing issued on 16 October 2018. All three calls went unanswered and voicemails were left on each occasion, seeking Mr Forster’s return call.

[7] On 2 and 5 November 2018, the Commission attempted to telephone Mr Forster in relation to his overdue material. Both calls were unsuccessful and a voicemail was left on each attempt to seek Mr Forster’s urgent return call.

[8] On 7 November 2018, the Commission emailed correspondence to Mr Forster warning that in the absence of his filing material or making a request for an extension to file material, the matter would be listed for a non-compliance hearing. Later the same day, a further attempt to contact Mr Forster was made and again, a voicemail was left where his urgent return call was sought.

[9] As no response was received from Mr Forster, the matter was listed for a non-compliance hearing. The non-compliance hearing was initially listed at 10:00am on 9 November 2018, but at the request of TSA, was rescheduled to 9:00am on 9 November 2018. Notices of Listing were sent to the parties to notify them of both the initial schedule and the subsequent reschedule.

[10] The non-compliance hearing proceeded before me on 9 November 2018. Despite two telephone calls to him and voicemails left on each occasion, Mr Forster could not be contacted. TSA made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Forster’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted TSA’s oral application.

[11] Following the non-compliance hearing, correspondence was sent to Mr Forster’s nominated email and postal addresses advising him of TSA’s s.399A application. The postal correspondence was sent via express post. Mr Forster was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 16 November 2018. The correspondence also noted that if the Commission did not receive a response, Mr Forster’s application for relief from unfair dismissal would be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Mr Forster’s nominated postal address on 12 November 2018.

[12] To date, Mr Forster has not filed any material with the Commission.

[13] 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.

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

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

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Forster has failed to respond to the numerous attempts made by the Commission to contact him. Apart from initially filing his application, Mr Forster has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with the Commission’s directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Forster’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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