Garry Dowding v Turner Trading Pty Ltd T/A Carts n Parts

[2019] FWC 2582

[2019] FWC 2582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garry Dowding
v
Turner Trading Pty Ltd T/A Carts n Parts
(U2019/32)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 APRIL 2019

Application for an unfair dismissal remedy.

[1] On 2 January 2019, Mr Garry Dowding 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 Dowding said his employment had been terminated by Turner Trading Pty Ltd T/A Carts n Parts (CNP) on 2 January 2019.

[2] A Notice of Listing scheduling the matter for a conciliation was sent to the parties via post on 9 January 2019. On the same day, the Commission sent a letter to Mr Dowding’s nominated email address advising him of the upcoming conciliation.

[3] On 15 January 2019, the Commission emailed correspondence to Mr Dowding seeking his preferred contact number for the conciliation. Mr Dowding responded to the Commission via reply email on 23 January 2019.

[4] Despite four attempts to contact Mr Dowding, the conciliation on 8 February 2019 could not proceed as he could not be reached. Following this, the Commission emailed the parties advising that if either party wished to proceed to a further conciliation, a request was to be made within two working days.

[5] As no request was received from Mr Dowding, a letter was sent to the parties on 13 February 2019 advising that the matter would be referred for arbitration.

[6] On 19 February 2019, a Notice of Listing was sent to the parties scheduling the matter for a Jurisdiction (Small Business Fair Dismissal Code) and Arbitration Conference/Hearing on 29-30 April 2019. Directions were also issued, requiring CNP to file its material in support of its jurisdictional objections by no later than noon on 4 March 2019, Mr Dowding to file his material in support of his application and responding to CNP’s objections by no later than noon on 11 March 2019, and CNP to file any material in reply by no later than noon on 18 March 2019.

[7] On 3 March 2019, CNP filed its material in compliance with the Directions.

[8] No material was received from Mr Dowding by noon on 11 March 2019.

[9] On 18 March 2019, the Commission attempted to contact Mr Dowding via both his nominated telephone numbers. Both attempts were unsuccessful and a voicemail message was left on Mr Dowding’s primary telephone number, advising that his material was overdue and requesting his return call. Following this, the Commission emailed Mr Dowding and warned that if he did not contact the Commission, his matter would be listed for a non-compliance hearing.

[10] On 19 March 2019, the Commission attempted a further call to Mr Dowding on his primary telephone number. A voicemail message was left seeking Mr Dowding’s urgent return call and again warning that his matter would be listed for a non-compliance hearing if he did not respond. Following this, the Commission sent Mr Dowding an email advising that his matter would be listed for a non-compliance hearing if he did not contact the Commission by noon the following day.

[11] As no response was received from Mr Dowding, a Notice of Listing was sent to the parties scheduling the matter for a non-compliance hearing. The Notice of Listing was also sent to Mr Dowding via express post. A review of the express post tracking ID reveals that the Notice of Listing was delivered at Mr Dowding’s nominated postal address on 21 March 2019.

[12] On 21 March 2019, the Commission attempted to telephone Mr Dowding but was unable to reach him. A voicemail message was left advising that the matter had been listed for a non-compliance hearing and to be available to attend via telephone.

[13] The non-compliance hearing proceeded before Commissioner Bissett on 22 March 2019. Mr Dowding could not be contacted. CNP made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Dowding’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted CNP’s oral application.

[14] Following the non-compliance hearing, correspondence was sent to Mr Dowding’s nominated email and postal addresses advising him of CNP’s s.399A application. Mr Dowding was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 29 March 2019. The correspondence also noted that if the Commission did not receive a response, Mr Dowding’s application for relief from unfair dismissal may be dismissed.

[15] On 1 April 2019, a Notice of Listing was sent to the parties cancelling the Jurisdiction and Arbitration Conference/Hearing scheduled for 29-30 April 2019.

[16] To date, Mr Dowding has not filed any material with the Commission.

[17] 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.

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

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

[20] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing his application, Mr Dowding has failed to actively prosecute his case and has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the non-compliance hearing on 22 March 2019, which took place over three weeks ago. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Dowding’s application. This ends his unfair dismissal application.

[21] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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