Jake Wise v Adrian Smith Enterprises

[2021] FWC 6135

[2021] FWC 6135

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jake Wise
v
Adrian Smith Enterprises
(U2021/8225)

COMMISSIONER HAMPTON ADELAIDE, 18 OCTOBER 2021

Application for an unfair dismissal remedy

[1] An Order 1 was issued by the Fair Work Commission (the Commission) on 15 October 2021 dismissing an application made under s.394 of the Fair Work Act 2009 (Cth) (FW Act) by Mr Jake Wise (the Applicant). The following Reasons for Decision set out the context in which the Order was made.

[2] Mr Wise made the s.394 application to the Commission on 9 September 2021 alleging that he had been unfairly dismissed from his employment with Adrian Smith Enterprises (the Respondent) on 6 July 2021. Mr Wise’s application was filed 44 days out of time by reference to the date of termination specified in his application and the 21-day initial period specified by s.394(2)(a) of the FW Act.

[3] Under ss.394(2)((b) and (3) of the FW Act the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account certain factors that are set out in the provision.

[4] The application was allocated to this arm of the Commission to consider whether there are exceptional circumstances and if an extension of time to file (EOT) should be granted.

[5] In order to determine the EOT matter, a Notice of Listing and Directions for the filing of materials were sent to the parties on 24 September 2021 as set out below:

“… …

3. Mr Wise is required to send the signed witness statement (including any documents on which he relies) to the Commission by email to [email protected] and to Adrian Smith Enterprises (theRespondent) by no later than 4.00pm (ACST) on Friday, 1 October 2021.

4. If Adrian Smith Enterprises intends to rely upon any other documents, submissions or witness statement(s) beyond the Employer’s Response document, in relation to the extension of time matter, it must provide these to the Commission and Mr Wise by 4.00pm (ACDT) on Friday 8 October 2021.

5. Compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned. Any enquiries in relation to these directions should be addressed to my office on telephone [phone] or email:[email protected].

… ...”

[6] Nothing was filed by the Applicant, or any person on his behalf, by 1 October 2021. A reminder SMS regarding the overdue submissions was sent by my Chambers to Mr Wise at 4.43pm on that day.

[7] On 6 October 2021 a voicemail message was left for Mr Wise seeking that he contact the Commission. This was immediately followed up with an SMS asking for him to return the call.

[8] On the morning of 7 October 2021, a further SMS was sent to Mr Wise seeking an urgent return call to Chambers.

[9] I observe that my Chambers has on each relevant occasion utilised the Applicant’s email specified in his application and/or his mobile phone number that the Commission has earlier successfully used to contact Mr Wise. There was no response to any of the attempts made to contact Mr Wise.

[10] On Friday 8 October my Chambers again wrote to Mr Wise, firstly outlining the actions taken by Chambers to contact him and advising him of the following:

“… …

There has been no response to the various attempts by the Commission to contact you this week.

Should you intend continuing with this application, you must as soon as possible, provide to the Commission and the respondent - written reasons for your non-compliance with the directions of the Commission as well as the required witness statement and any supporting documents you seek to rely upon in connection with the extension of time matter. If the Commission does not receive these by 4.00pm on Wednesday 13 October 2021, the extension of time will be refused and the unfair dismissal application will be dismissed without further notice or hearing.

In the event that the above materials are filed by Mr Wise as required, the respondent will be given an opportunity to provide to the Commission and Mr Wise, any additional materials - beyond the Employer Response document already filed – relevant to the extension of time matter. This is to be provided by 4.00pm Monday 18 October 2021. Further, if Mr Wise’s materials are filed, the hearing of the extension of time will then proceed as already listed on Tuesday 19 October 2021 at 2.00pm.

If you no longer intend proceeding with this application Mr Wise, please advise the Commission promptly.

This email has also been provided to Ms Lawrence as the representative of the respondent.

… …”

[11] There was no response by Mr Wise, or any person acting on his behalf, to the email of 8 October 2021 by the due date of 13 October 2021 (or as at the time of providing these reasons).

[12] In the circumstances, Mr Wise has failed to provide material to support the EOT required for the unfair dismissal application to be made. Further, he has, in effect, abandoned that application and the EOT request. On that basis, the unfair dismissal application is not properly before the Commission as no EOT has been granted; however, as a matter of abundant caution, and given that there were no reasonable prospects of success for an abandoned application, I considered that it was appropriate to issue the Order to dismiss the application. 2

COMMISSIONER

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 1   PR734896.

 2 Section 587(a) and (c) of the FW Act provide the necessary power to do so in each case.