Jacob Williams v Wellways Australia Ltd T/A Wellways

[2020] FWC 2500

[2020] FWC 2500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacob Williams
v
Wellways Australia Ltd T/A Wellways
(U2020/2114)

COMMISSIONER BISSETT MELBOURNE, 18 MAY 2020

Application for an unfair dismissal remedy – jurisdictional objections – failure to comply with directions - s.399A application to dismiss.

[1] On 25 February 2020 Mr Jacob Williams (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant was dismissed from his employment with Wellways Australia Ltd T/A Wellways (Respondent) on 18 January 2020.

[2] The matter was initially listed for conciliation on 27 March 2020 however due to conciliator unavailability the matter was relisted for 15 April 2020. A SMS text message was to the parties on 14 April 2020 reminding them of the conciliation scheduled for the following day.

[3] Despite several attempts to telephone the Applicant on 15 April 2020 the conciliation could not proceed as the Commission was unable to contact the Applicant. Later that day the Commission emailed correspondence to the parties’ nominated email address advising that if either party wished to have a further opportunity to participate in conciliation, to contact the Commission within 2 working days. No request was received.

[4] On 21 April 2020 directions were issued to the parties and the matter was listed for Jurisdiction (Extension of Time) Conference/Hearing on 15 May 2020. The Applicant was directed to file his material by no later than noon on 28 April 2020.

[5] On 24 April 2020 the Applicant’s representative wrote to the Commission advising that as he has not been able to contact the Applicant, he will no longer be representing him.

[6] At 11.30 am on 29 April 2020 the Commission attempted to contact the Applicant on his nominated telephone number regarding to his failure to file submissions. The Applicant did not answer the call and a voicemail message was left requesting an urgent call back to discuss his overdue material. The Applicant did not respond.

[7] On 28 April 2020 the Commission emailed correspondence to the Applicant’s nominated email address in regard to his overdue material. He was requested to contact the Commission by 10.00 am on 29 April 2020 to advise when he intended to file his submissions. The correspondence stated that if the Commission did not receive a response, his matter was at risk of being listed for a Non-Compliance Hearing on 1 May 2020. The Applicant did not respond and the matter was listed for Non-compliance Hearing.

[8] On 30 April 2020 the Commission sent a SMS text message to the Applicant’s nominated mobile telephone number reminding him of the Non-compliance hearing scheduled for the following day.

[9] The matter was listed for Non-compliance Hearing before Commissioner Wilson on 1 May 2020. The Applicant did not attend and attempts to contact him were unsuccessful. At the hearing the Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with the directions of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[10] On 4 May 2020 correspondence was sent to the Applicant’s nominated email address advising him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by no later than 4.00 pm on 11 May 2020. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[11] To date, the Applicant has not filed any material with the Commission.

[12] Section 399A of the FW 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.

[13] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact him. The Applicant has not provided an explanation to the Commission for his failure to comply with the directions of the Commission issued on 21 April 2020 or his failure to attend the Non-compliance Hearing on 1 May 2020.

[15] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR719332>

 1   PR719333.