Harry Oliver v Tutto Bene

[2019] FWC 4813

[2019] FWC 4813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Harry Oliver
v
Tutto Bene
(U2019/3644)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 JULY 2019

Unfair Dismissal application – Failure by Applicant to comply with directions of the Commission – Application made pursuant to s.399A and granted – Unfair dismissal application dismissed.

[1] On 31 March 2019, Mr Harry Oliver 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 Oliver said he was notified his employment had been terminated by Tutto Bene on 13 March 2019 and that the dismissal took effect the same day.

[2] In its Form F3 Employer Response to unfair dismissal application filed with the Commission on 17 April 2019, Tutto Bene objected to Mr Oliver’s application on the basis that the application was out of time (i.e. lodged more than 21 days after the dismissal took effect) and submitted that Mr Oliver’s effective date of dismissal was 6 March 2019.

[3] The matter was originally listed for conciliation on 15 May 2019 but due to operational requirements, this was rescheduled to 4 June 2019. Notices of Listing were sent to the parties on each occasion the conciliation was scheduled then rescheduled.

[4] The conciliation on 4 June 2019 could not proceed due to the unavailability of Mr Oliver. Subsequently, the Commission sent correspondence to the parties advising that if Mr Oliver wished to proceed to a further conciliation, he was required to request this within two working days.

[5] As there was no response from Mr Oliver, correspondence was sent to the parties via email on 7 June 2019 advising that the matter was being referred for further programming.

[6] On 12 June 2019, a Notice of Listing was sent to the parties scheduling the matter for an Extension of Time Conference/Hearing on 12 July 2019 to deal with Tutto Bene’s jurisdictional objection that Mr Oliver’s application was filed out of time. Directions were also issued for the filing of material. Mr Oliver was directed to file his material by no later than noon on 24 June 2019 and Tutto Bene was to file its material by no later than noon on 1 July 2019. The Notice of Listing and accompanying directions were sent to Mr Oliver’s nominated email and postal addresses.

[7] Later the same day, the Commission attempted to contact Mr Oliver via his nominated telephone number to advise that he may be eligible for the Workplace Advice Service. A voicemail message was left requesting Mr Oliver’s return call.

[8] Mr Oliver did not contact the Commission, nor did he file any material by noon on 24 June 2019.

[9] On 24 and 25 June 2019, attempts were made by the Commission to contact Mr Oliver regarding his overdue material. The phone number nominated by Mr Oliver in his application was engaged on both occasions. Email correspondence was subsequently sent to Mr Oliver’s nominated email address on 25 June 2019 noting that if he did not contact the Commission by 4:00pm on 26 June 2019, the matter would be listed for a non-compliance hearing.

[10] On 26 June 2019, a Notice of Listing was sent to the parties scheduling the matter for a non-compliance hearing on 28 June 2019. This was sent to Mr Oliver’s nominated email address.

[11] On 27 June 2019, the Commission sent a SMS message to Mr Oliver advising him of the non-compliance hearing to take place the following day and that he would be contacted on the phone number nominated on his application.

[12] The non-compliance hearing proceeded before me on 28 June 2019. Mr Oliver could not be contacted. Tutto Bene made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Oliver’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Tutto Bene’s oral application.

[13] Following the non-compliance hearing, a Notice of Listing was sent to the parties vacating the directions to file materials and further correspondence was sent to Mr Oliver’s email and postal addresses advising him of Tutto Bene’s s.399A application. Mr Oliver was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 5 July 2019. The correspondence also noted that if the Commission did not receive a response, Mr Oliver’s application for relief from unfair dismissal may be dismissed. A review of the Australia Post tracking ID indicates the correspondence was delivered to Mr Oliver on 2 July 2019.

[14] At 11.46am on 5 July 2019, the Commission received a telephone call from Mr Oliver’s father who advised that Mr Oliver was interstate attending a funeral and further queried what action was required to be taken in the matter. Mr Oliver’s father was advised that pursuant to the correspondence dated 28 June 2019, Mr Oliver was required to file submissions by close of business that day in relation to why his unfair dismissal application should not be dismissed. Mr Oliver’s father advised that Mr Oliver had not received any previous correspondence from the Commission. The Commission confirmed correspondence had been sent to the email and postal addresses nominated on Mr Oliver’s application and that attempts had been made to contact him via telephone and SMS. The Commission further offered the suggestion that the emails may have gone to a spam folder, even though there was nothing on the Commission’s file to indicate that this may have been the case. The Commission’s records also indicate Mr Oliver’s father was reminded during this telephone conversation that Mr Oliver was required to make submissions in response to Tutto Bene’s s.399A application by close of business that day.

[15] At 3.31pm on 5 July 2019, an email from Mr Oliver was received by the Commission. It stated:

“Dear Sir,

I have received a letter from your office dated 28/6/19 stating that the hearing relating to my unfair dismissal application did not proceed due my non attendance.

I had been waiting for notification from your office and from 19/5/19 through until 31/5/19 I was in South Australia to attend the funeral of a life long friend and spend some time with his family.

As such I did not receive any notification of my hearing date. It was only after receiving the above mentioned letter and contacting your office that it was suggested that your email may have gone to my spam folder. This was a possibility I had never considered.

Immediately upon my return to Victoria I attended an appointment with my GP and was told I had what may have been a lung infection. Since receiving your letter I have been unable to see my GP to discuss this matter with him and seek a Medical Certificate as he was completely booked out and then going on leave until the 15/7/19.

I feel that while I have not attended the hearing, matters beyond my control have prevented me from doing so. As such I am asking for the opportunity to appear before the Commission to state my case in person.”

[16] In response, Tutto Bene sent the Commission an email later in the afternoon of 5 July 2019. It stated:

“I understood that Mr Oliver was contacted by physical mail, email and phone calls several times to remin [sic]him of the mediation and deadlines he was aware of – to no avail – and Mr Oliver has been aware of all the deadlines from mediation and submission at all times

As per the non-compliance hearing by Honourable Reg Hamilton and our formal request to dismiss, we respectfully ask that the dismissal be upheld based on jurisdictional objections, our replied paperwork, non-compliance by Mr Oliver and expired deadlines”

[17] Immediately following this, Tutto Bene emailed the Commission advising it had incorrectly referenced Deputy President Hamilton, instead of me.

[18] 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.”

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

Consideration

[20] The procedural history of this matter involves Mr Oliver:

a) Not attending the conciliation conference on 4 June 2019, despite he himself having suggested this date (on 16 May 2019) and having been sent an SMS reminder about it by the Commission on 3 June 2019;

b) Not responding to correspondence from the Commission sent on 7 June 2019;

c) Not complying with or making any response to the Commission’s directions that he file and serve his material by noon on 24 June 2019;

d) Not responding to telephone calls and email correspondence from the Commission on 24 and 25 June 2019 regarding his overdue material;

e) Failing to appear at a non-compliance hearing before me on 28 June 2019, despite having been sent the Notice of Listing for it and an SMS reminder in advance; and

f) Failing to make any submissions in response to the Commission’s direction that he respond to the s.399A application, beyond his email to the Commission late on 5 July 2019, referred to in paragraph [15] above.

[21] I make the following observations regarding the explanation given by Mr Oliver about the period he spent in South Australia:

•  The period during which Mr Oliver says he was in South Australia was before the listed date for the Conciliation conference (4 June 2019), the dates upon which the Notice of Listing with directions was sent to him (12 June 2019), the date upon which his material was due (24 June 2019) and the non-compliance hearing (28 June 2019); and

•  Mr Oliver’s suggestion that being in South Australia from 19-31 May 2019 accounts (even in part) for why he did not receive any notification of his hearing date is not compelling, given the Notice of Listing with directions was not sent to him until 12 June 2019.

[22] As to Mr Oliver having described email correspondence from the Commission going to his ‘spam folder’ as being “a possibility I had never considered”, Mr Oliver has not produced any evidence that this was in fact the case. Further, Mr Oliver has given no explanation as to why he received the emailed letter from the Commission dated 28 June 2019 but not the earlier email correspondence sent to him on 12 June 2019, 25 June 2019 and 26 June 2019.

[23] My review of the Commission’s file indicates that not one of the pieces of email correspondence sent by the Commission to Mr Oliver at his nominated email address has resulted in the Commission subsequently receiving notification that it was ‘undeliverable’. Further, the Notice of Listing and directions made on 12 June 2019 were also sent to Mr Oliver’s nominated postal address, as was the Commission’s letter dated 28 June 2019. Neither piece of correspondence was subsequently received back by the Commission as ‘return to sender’.

[24] Finally, as to Mr Oliver’s advice that he has suffered from a lung infection, he apparently saw his General Practitioner immediately upon his return to Victoria on or about 1 June 2019 but has not seen him since. This attendance upon his General Practitioner occurred prior to Mr Oliver having been sent the Notice of Listing with directions on 12 June 2019 which, in any event, he claims not to have received. Presumably, Mr Oliver is seeking to suggest his condition was such that he could neither have complied with the directions to file and serve materials by noon on 24 June 2019 nor attended the non-compliance hearing on 28 June 2019. What Mr Oliver would in effect be asking his General Practitioner to now do is certify in retrospect, based on a medical consultation that occurred approximately seven weeks ago:

1) That Mr Oliver would not have been able to attend the conciliation conference on 4 June 2019; and

2) would neither have been able to correspond with the Commission nor prepare his materials in compliance with the directions for the entire period between 12 June 2019 and 5 July 2019; and

3) was not fit to attend the non-compliance hearing on 28 June 2019.

[25] Having regard to these matters, I am not satisfied that Mr Oliver has provided a reasonable explanation for his failure to both attend the non-compliance hearing and comply with the directions of the Commission.

[26] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The procedural history of this matter reveals both a history of non-compliance and continuing non-compliance by Mr Oliver. Even now, with it being apparent that Tutto Bene has made s.399A application, Mr Oliver has not provided what I would consider to be a substantial response to it. The explanations that comprise his response are not persuasive. In the circumstances of this matter, I am satisfied that Mr Oliver has behaved unreasonably in terms of s.399A(1)(a) and (b) of the Act and am persuaded that I should exercise my discretion under s.399A to dismiss Mr Oliver’s application.

[27] An order giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

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