Dominic Bayes v Eddie Williams Locksmiths

[2018] FWC 3732

[2018] FWC 3732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dominic Bayes

v

Eddie Williams Locksmiths

(U2018/3090)

COMMISSIONER SIMPSON SYDNEY, 25 JUNE 2018

Application for an unfair dismissal remedy – Applicant failed to attend directions hearing – correspondence sent to Applicant to explain reason for failure to attend – Applicant failed to provide a response by specified time – Application dismissed for want of prosecution

1. This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Dominic Bayes (the Applicant) who alleges that the termination of his employment with Eddie Williams Locksmiths (the Respondent) was unfair. The application was lodged in Brisbane on 25 March 2018. The matter was allocated to my chambers on 5 June 2018.

1. On 11 June 2018 a Notice of Listing was sent to the parties advising that the matter was listed for a directions hearing by telephone at 10:00am Tuesday 19 June 2018. The Notice of Listing required the parties to email my chambers with their best contact number for the directions hearing by 10:00am Monday 18 June 2018.

1. On Monday 18 June 2018 the Respondent contacted my chambers and provided their best contact number, however the Applicant failed to provide a contact number by the specified time. 

1. My Associate subsequently attempted to contact the Applicant to confirm his best contact number for the directions hearing. My Associate dialled the mobile number listed as the primary contact number on the Applicant’s Form F2 application, however the call went unanswered. My Associate then dialled the mobile number listed as the secondary contact number for the Applicant on his Form F2 and spoke to a person by the name of Hannah, who advised the best contact number for the Applicant was the primary contact number listed on the Form F2. Hannah advised my Associate that the Applicant would be available at 9:50am for a phone call on 19 June 2018.

1. On Tuesday 19 June 2018 at approximately 9:50am my Associate attempted to contact the Applicant on his primary contact number. The call went unanswered and my Associate left a voicemail message requesting that the Applicant contact my chambers urgently. My Associate then called the secondary contact number which was again answered by a person named Hannah, who advised my Associate she would attempt to contact the Applicant.

1. At approximately 10:00am Hannah called my Associate and advised she could not get a hold of the Applicant. My Associate advised Hannah that the directions hearing would proceed and correspondence will be sent to the Applicant.

1. On the afternoon of Tuesday 19 June 2018 my Associate sent correspondence by both email and express post to the Applicant, copied to the Respondent, that reads as follows:

“Dear Mr Bayes

U2018/3090 - Bayes, Dominic v Eddie Williams Locksmiths

Today 19 June 2018 you failed to attend and participate in the directions hearing by telephone for the above matter.

Attempts were made to contact you on the mobile number listed on the application. The mobile number went straight to message bank on the numerous attempts to call you. A message was left requesting that you call the chambers of Commissioner Simpson urgently.
You have made no attempt to contact the chambers of Commissioner Simpson to explain the reasons for not participating in the directions hearing.

If no explanation is received from you in writing by close of business on Friday 22 June 2018, the Commissioner may give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009. The Respondent would also be at liberty to make an application that the unfair dismissal application be dismissed in accordance with s.399A of the Fair Work Act 2009.

Your response can be e-mailed to [e-mail] or posted to the Fair Work Commission, GPO Box 5713, Brisbane, QLD, 4001…”

1. As at Monday 25 June 2018 no response has been received from the Applicant.

Consideration

1. In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

1. The Full Bench of Fair Work Commission in Sayer v Melsteel Pty Ltd[1] considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to the Fair Work Commission to consider exercising the power of the Tribunal under section 587(1). Sayer further considers that it would not be inconsistent with s. 587(1) to dismiss the application without examining the merits.

1. It is clear that the Applicant has been given a reasonable opportunity by the Commission to make himself available to prosecute his claim. My chambers made multiple attempts to contact the Applicant to confirm his contact details, however the Applicant failed to make himself available to attend a 15 minute directions hearing by Telephone. Further, the Applicant was given an opportunity to provide reasons for his failure to attend the directions hearing on 19 June 2018, however the Applicant has made no attempt to provide any such reason.

1. I adopt the approach of the Full Bench in Sayer in this matter. The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above. Accordingly the matter is dismissed.

<PR608407>

[1] [2011] FWAFB 7498.

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