Heath Thorneycroft v LED Autolamps

[2016] FWC 2960

[2016] FWC 2960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Heath Thorneycroft
v
LED Autolamps
(U2016/3657)

COMMISSIONER WILSON MELBOURNE, 23 MAY 2016

Application for relief from unfair dismissal.

[1] On 8 January 2016, Mr Heath Thorneycroft made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Thorneycroft’s employment had been terminated by LED Autolamps on 18 December 2015.

[2] The matter was listed for conciliation on 24 February 2016 however it could not take place.

[3] The matter was the subject of conciliation on 9 March 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[4] Mr Thorneycroft was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 4 April 2016.

[5] Mr Thorneycroft did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 29 April 2016.

[6] Mr Thorneycroft did not attend the non compliance hearing. LED Autolamps made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Thorneycroft had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted LED Autolamps’ oral application.

[7] On 29 April 2016, Mr Thorneycroft was sent correspondence informing him of LED Autolamps’ section 399A application. Mr Thorneycroft was directed to file submissions and other documentary material in respect of LED Autolamps’ application by close of business, on 6 May 2016. Mr Thorneycroft was advised that if he failed to comply with this direction, his application would be dismissed.

[8] On 6 May 2016, Mr Thorneycroft emailed the Commission:

“As per the initial paperwork stated I believed the hearing to be this coming Monday and Tuesday. I am able to re submit all previous documents that are required. I do not want the hearing thrown. Pls advise at your earliest convenience.”

[9] On 9 May 2016, 10 May 2016 and 11 May 2016, the Commission attempted to telephone Mr Thorneycroft but a message could not be left on his mobile.

[10] On 9 May 2016, the Commission emailed Mr Thorneycroft requesting he contact chambers at his earliest convenience.

[11] On 10 May 2016, the Commission forwarded a text message to Mr Thorneycroft’s mobile requesting he contact chambers.

[12] On 12 May 2016 at 3.10 pm, Mr Thorneycroft forwarded the following email to chambers:

“Thank you for your reply. Just advising you that I called yesterday, and earlier this week too (and send another email).
If you could get back to me when you are free to let me know of the hearing date and what is happening in my case it would be very appreciated.
My wife is due in three weeks with our baby and would like to have this all organised as soon as possible :-)”

[13] On 21 May 2016 at 4.38 pm, Mr Thorneycroft forwarded the following email to chambers:

“I received the email on 29/4/16 advising me that I didn't attend the hearing that day- I wasn't aware that the hearing date had been changed. However, prior to the 29/4/16 I didn't receive any email saying the hearing date had been changed from the original date- 9/5/16-10/5/16.
The next Monday I called as soon as I could to advise FWA that I didn't receive an email about the change, and the person advised me someone would email me about what to do from there. Last week, as I didn't hear back I called again and also emailed asking what I had to do.
I also have called and emailed this week.
I don't have any documents to prove otherwise other than the original email I received with the hearing dates being on the 9/5 and 10/5. If I had known of the change I would have definitely came to the hearing.
I am not sure what documents I am meant to provide but this was purely the reason I didn't attend.
I don't want the case to be cancelled please.
If you could advise me if I need to do anything further please let me know? I am not sure what the next step is from here due to the confusion, and just wondering when I would find out of the revised hearing date? “

[14] On 12 May 2016 at 5.16 pm, the Commission contacted Mr Thorneycroft. He advised he had faxed all documents as per directions issued to the Fair Work Ombudsman’s office on 3 April 2016. He was asked to provide a copy of the documents and proof of the fax sent on 3 April 2016 to chambers. He advised he would provide all documents to the Commission the following day.

[15] Mr Thorneycroft has not contacted or filed any material with the Commission.

[16] 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.

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

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

[19] As Mr Thorneycroft has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[20] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Thorneycroft has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Thorneycroft’s application. An order giving effect to this decision will be issued today.

COMMISIONER

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