David Kiely v Creswick Quartz

[2018] FWC 6868

[2018] FWC 6868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Kiely
v
Creswick Quartz
(U2018/8233)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 9 August 2018, Mr David Kiely 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 Kiely said his employment had been terminated by Creswick Quartz on 27 July 2018.

[2] A conciliation was scheduled for 5 September 2018, however it did not resolve and the matter was referred for arbitration, with directions issued the same day. Mr Kiely was directed to file his material by no later than noon on 24 September 2018 and Creswick Quartz was directed to file its reply material by no later than noon on 15 October 2018.

[3] On 1 October 2018, a Notice of Listing was sent to the parties scheduling the matter for a Jurisdiction (No Dismissal) and Arbitration Conference/Hearing on 4-5 December 2018. Amended directions were also issued, requiring Creswick Quartz to file material in relation to its jurisdictional objection by no later than noon on 15 October 2018, Mr Kiely to file a response to the jurisdictional objection as well as material in support of his unfair dismissal application by no later than noon on 22 October 2018, and Creswick Quartz to file any reply material by no later than noon on 29 October 2018.

[4] On 10 October 2018, Creswick Quartz emailed the Commission advising that it wished to withdraw its jurisdictional objection. The Commission therefore issued amended directions which required Mr Kiely to file his material by no later than noon on 22 October 2018 and Creswick Quartz to file its reply material by no later than noon on 5 November 2018.

[5] On 22 October 2018, as no material was received from Mr Kiely, the Commission attempted to telephone him in relation to his outstanding material. This was unsuccessful, and a voicemail was left seeking his urgent return call.

[6] On 23 October 2018, email correspondence was sent to Mr Kiely warning that if he did not file his material or make a request for an extension for the filing of his material by 12:00pm on 24 October 2018, the matter would be listed for a non-compliance hearing on 26 October 2018.

[7] As no response was received in relation to the email correspondence, the matter was listed for a non-compliance hearing on 25 October 2018 for the following day. A further attempt to telephone Mr Kiely to advise him of the non-compliance hearing was made, however this was unsuccessful and an urgent return call was sought via voicemail.

[8] The non-compliance hearing proceeded before Deputy President Colman on 26 October 2018. Despite multiple attempts to contact Mr Kiely via telephone, he did not attend. Creswick Quartz made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Kiely’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Creswick Quartz’s oral application.

[9] Following the non-compliance hearing, correspondence was sent to Mr Kiely’s nominated email address advising him of Creswick Quartz’s s.399A application. Mr Kiely was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 2 November 2018. The correspondence also stated that if the Commission did not receive a response, Mr Kiely’s application for relief from unfair dismissal would be dismissed.

[10] To date, Mr Kiely has not filed any material with the Commission.

[11] 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.

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

[13] As Mr Kiely 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. Mr Kiely has failed to respond to numerous attempts made by the Commission to contact him. Apart from initially filing his application and attending the conciliation, Mr Kiely 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 Kiely’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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