Darren Bell v Flavorite Marketing

[2018] FWC 7126

[2018] FWC 7126

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Bell
v
Flavorite Marketing
(U2018/6730)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 29 June 2018, Mr Darren Bell 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 Bell said his employment had been terminated by Flavorite Marketing on 8 June 2018.

[2] Mr Bell did not initially pay the required fee and as such, the matter could not be progressed. Following multiple telephone calls over the period 27 July 2018 to 21 September 2018, Mr Bell eventually paid the required fee on 21 September 2018.

[3] A Notice of Listing was sent to the parties on 24 September 2018 scheduling the matter for conciliation. On 4 October 2018, Mr Bell provided his preferred telephone contact number to the Commission for the purposes of conciliation.

[4] The conciliation on 9 October 2018 did not proceed because Mr Bell could not be contacted. The Commission later emailed correspondence to parties stating that unless Mr Bell advised that he wished for the matter to proceed to a further conciliation within two working days, the matter would be referred to arbitration.

[5] As Mr Bell did not contact the Commission, the matter was referred to arbitration on 12 October 2018 and email correspondence was sent to the parties to confirm this.

[6] On 15 October 2018, a Notice of Listing was sent to the parties scheduling the matter for an Arbitration Conference/Hearing on 20-21 December 2018. Directions were also issued requiring Mr Bell to file his material by no later than noon on 5 November 2018 and Flavorite Marketing to file its reply material by no later than noon on 26 September 2018.

[7] On 5 and 7 November 2018, the Commission attempted to telephone Mr Bell on two occasions regarding his overdue material. Both attempts were unsuccessful and voicemails were left seeking his urgent return call. An email was subsequently sent to Mr Bell on 7 November 2018, 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 on 9 November 2018.

[8] As no response was received from Mr Bell, a Notice of Listing scheduling the non-compliance hearing was sent to the parties on the afternoon of 7 November 2018.

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

[10] Following the non-compliance hearing, correspondence was sent to Mr Bell’s nominated email and postal addresses advising him of Flavorite Marketing’s s.399A application. The postal correspondence was sent via express post. Mr Bell 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 Bell’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 Bell’s nominated postal address on 13 November 2018.

[11] To date, Mr Bell has not filed any material with the Commission.

[12] 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.

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

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

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Bell has failed to respond to numerous attempts made by the Commission to contact him. Apart from initially filing his application and eventually paying the required fee, Mr Bell 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 Bell’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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