Harrison Pullman v Dimity Downs Pty Ltd
[2022] FWC 2805
•19 OCTOBER 2022
| [2022] FWC 2805 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Harrison Pullman
v
Dimity Downs Pty Ltd
(U2022/8202)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 19 OCTOBER 2022 |
Application for an unfair dismissal remedy.
On 9 August 2022, Mr Harrison Pullman (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Dimity Downs Pty Ltd (the Respondent) was unfair.
The matter was initially listed in the Fair Work Commission (the Commission) for a staff conciliation telephone conference at 9:15 am on 12 September 2022 but did not proceed due to the Applicant’s unavailability.
An email was subsequently sent by the Commission to the parties on 12 September 2022 confirming that the matter did not proceed due to the Applicant’s unavailability. The email further outlined that should the parties wish for the matter to proceed via a further conciliation, they were required to make a request within two working days (by 14 September 2022) and provide advice in relation to their availability. The email stated that should a response not be received within the required timeframe; the matter would be referred directly for arbitration before a member of the Commission. No response to the Commission’s correspondence of 12 September 2022 was received from the Applicant and the matter was allocated to my Chambers on 19 September 2022.
Following allocation of the matter, directions were issued to the parties by my Chambers on 20 September 2022 setting down a timetable for the filing of material by both parties. The directions required the Applicant to file and serve on the Respondent by close of business Tuesday 11 October 2022 any submissions, witness statements and other material on which he sought to rely on in relation to the merits of his application. The Respondent was then required to file its material in reply by the close of business on Tuesday 1 November 2022. The matter was listed for hearing on 14 November 2022 to deal with the merits of the application.
The directions to the parties relevantly included the following;
“……………
SUBMISSIONS AND WITNESS STATEMENTS
[3] The submissions must include all relevant facts, dates and incidents to support all claims made.
[4] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.
[5] Please note that witness statements are designed to take the place of evidence-in-chief.
……………………….
NON-COMPLIANCE WITH THESE DIRECTIONS
[8] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.
[9] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.
……………….”
The Applicant failed to file his material on or by close of business 11 October 2022 in accordance with the Directions issued on 20 September 2022. Correspondence was then sent by my Chambers to the Applicant on the morning of 12 October 2022 requiring that the Applicant file his material by the close of business Wednesday 12 October 2022 failing which a non-compliance hearing would be listed to which he would be directed to attend.
The Applicant failed to file his material by the close of business on Wednesday 12 October 2022. As a consequence, the matter was listed for an on-line non-compliance hearing before me at 1.00pm on 14 October 2022. The non-compliance hearing was initially attended by the Applicant and Mr John Sanders of MST Lawyers representing the Respondent. While appearing at the start of the non-compliance hearing the Applicant disconnected from the hearing when questioned by me as to why he had failed to file his material. The hearing was then briefly adjourned while my Associate made several unsuccessful attempts to contact the Applicant by telephone and email to arrange for him to re-join the hearing.
After disconnecting from the non-compliance hearing the Applicant wrote to my chambers at 1.19pm and explained that his decision to disconnect from the hearing arose from his feeling uncomfortable and that he believed he was not getting a fair hearing. Following unsuccessful attempts to arrange for the Applicant to re-join, the hearing proceeded at which point the Respondent’s representative made an oral application that the Applicant’s unfair dismissal application be dismissed pursuant to s.399A due to his failure to comply with directions of the Commission in respect of the filing of his submissions and material.
Correspondence was sent by my chambers on 14 October 2022 to the Applicant advising him that an application had been made by the Respondent for his application to be dismissed pursuant to s.399A of the Act. The Applicant was invited to provide submissions by close of business on Tuesday 18 October 2022 as to why his application should not be dismissed. The Applicant was also advised that should he seek to be heard in relation to the s.399A application he should advise my Chambers. Otherwise, the s.399A application would be dealt with on the papers. No submissions were filed by the Applicant in response to the correspondence from the Commission sent to him on 14 October 2022.
Consideration
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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss his application for an unfair dismissal remedy by the close of business on Tuesday 18 October 2022, I will determine the application on the papers.
I am satisfied that the Applicant has displayed a pattern of non-compliant behaviour. He failed to file his submissions and materials in accordance with directions issued on 20 September 2022, failed to attend an initial conciliation conference on 12 September 2022, abruptly and without prior explanation disconnected from the on-line non-compliance hearing conducted on 14 October 2022 and then failed to respond to an invitation to make submissions as to why his application should not be dismissed.
In the circumstances I have decided to grant the Respondent’s application under s.399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.
DEPUTY PRESIDENT
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