Edward Bryson v JPM Constructions

[2017] FWC 4129

[2017] FWC 4129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edward Bryson
v
JPM Constructions
(U2017/4914)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 8 May 2017, Mr Edward Bryson made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Bryson said he was notified of his dismissal on 26 April 2017, with it taking effect the same day.

[2] The matter was initially listed for conciliation on 1 June 2017, however, due to conciliator unavailability the matter was re-listed for 13 June 2017. On that day, neither party could be contacted so the conciliation could not proceed. Consequently, directions were issued and Mr Bryson was required to file an outline of argument, statement(s) of evidence and a document list by no later than noon on 17 July 2017.

[3] On 14 July 2017, an SMS message was sent to Mr Bryson, reminding him that his written submissions were due to be filed on the following Monday. Mr Bryson was advised if he had any questions, he could call the Unfair Dismissal Case Management Team.

[4] As no material had been received, in the afternoon of 17 July 2017 a voicemail message was left for Mr Bryson regarding the outstanding submissions and a request was made for a return call. The following day, an email was sent to Mr Bryson confirming no material had been filed. Mr Bryson was asked to contact the Commission and was advised if he required an extension of time, this request should be made in writing with any accompanying documentary evidence. It was noted that in the absence of any contact from him, the matter would be referred to a non compliance hearing.

[5] Further attempts to telephone Mr Bryson were made on 19 July and 20 July 2017, with a voicemail left on each occasion seeking an urgent return call. On the latter date, Mr Bryson was advised that if no communication from him was received by noon that day, the matter would be listed for a non compliance hearing on Friday 21 July 2017.

[6] The non compliance hearing proceeded before me on 21 July 2017. Mr Bryson did not attend the hearing as he could not be contacted. JPM Constructions (JPM) made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Bryson had failed to comply with a direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted JPM’s oral application. Correspondence was then sent to Mr Bryson informing him of JPM’s s.399A application. Mr Bryson was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Friday, 28 July 2017. This correspondence was sent to Mr Bryson via email and post.

[7] To date, Mr Bryson has not filed any material with the Commission.

[8] 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.

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

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

[11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Bryson has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application, confirming his start date with JPM and his availability for a conciliation conference, Mr Bryson has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Bryson’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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