Gary Ellis v MJ Lev Pty Ltd

[2020] FWC 1112

[2020] FWC 1112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Ellis
v
MJ Lev Pty Ltd
(U2019/12212)

DEPUTY PRESIDENT BULL SYDNEY, 28 FEBRUARY 2020

Application for an unfair dismissal remedy - s.399A – application dismissed. Applicant’s failure to prosecute application

[1] On 2 November 2019, Mr Gary Ellis (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he had been unfairly dismissed by MJ Lev Pty Ltd (the employer).

Background

[2] The Commission’s file notes on this matter indicate that the matter was listed for a telephone conciliation before a Commission conciliator on 27 November 2019. However due to the unavailability of the conciliator, the conciliation did not proceed and was relisted to 28 November 2019.

[3] On 28 November 2019, the applicant was unable to be contacted. The conciliator was later advised by the applicant that he was in hospital and due to vision problems was unable to proceed with the conference.

[4] On 29 November 2019, the respondent requested for a second conciliation to be held. The applicant was left a voicemail about his availability for a second conciliation.

[5] On 3 December 2019, the applicant emailed the Commission advising that he had been hospitalised and that he was unable to participate in a conciliation until 2 weeks later. The matter was subsequently listed for a second conciliation on 17 December 2019.

[6] On 17 December 2019, the conciliator was unable to contact the applicant. The matter was then allocated to my Chambers.

[7] On 10 January 2020, Chambers sent a Notice of Listing to the applicant and respondent, along with Directions. The Directions listed a telephone mention followed by dates for the filing of written submissions and witness statements.

[8] The telephone mention was scheduled on 14 January 2020 and despite two attempts by my Associate the applicant could not be contacted on the applicant’s mobile telephone. A voice message was left on both occasions. An email then sent on 14 January to the applicant seeking an explanation for his absence from the telephone mention and advising of the requirement to file his written submissions and witness statement/s by 29 January 2020.

[9] The respondent emailed Chambers on 6 February 2020, pointing out that the applicant had not filed submissions as directed.

[10] On 9 February 2020, Chambers emailed the applicant about the failure to comply with the directions requesting a response by 13 February 2020. The applicant was advised that the failure to comply with directions may result in the application being dismissed.

[11] On 17 February 2020, Chambers received a further email from the respondent enquiring whether the applicant had filed any submissions. Chambers advised the respondent that no submissions have been received from the applicant.

[12] On 21 February 2020 Chambers received an application from the respondent pursuant s.399A to dismiss the unfair dismissal application. The applicant was copied in on the application.

[13] As at the date of this decision the applicant has not made contact with the Commission despite being requested to do so on a number of occasions. The applicant has been advised that his failure to prosecute his application may lead to its dismissal.

Legislation

[14] 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

Decision

[15] In lieu of any explanation I am satisfied that the applicant has unreasonably failed to attend the telephone conciliation conference as directed.

[16] I am further satisfied that the applicant has unreasonably failed to provide a witness statement/s and submissions as directed. No explanation has been provided by the applicant concerning his failure to file any written submissions and witness statement/s as directed despite being reminded of this obligation by email on 14 January and 7 February 2020, including advice that his application may be dismissed on the basis of his non-compliance.

[17] In accordance with s.399A of the Act, the applicant’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

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