James Curtis v Farmhaul Pty Ltd

[2018] FWC 7455

[2018] FWC 7455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Curtis
v
Farmhaul Pty Ltd
(U2018/9702)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 20 September 2018, Mr James Curtis 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 Curtis said his employment had been terminated by Farmhaul Pty Ltd (Farmhaul) on 27 July 2018. The application indicated that Mr Curtis was represented by Mr Tim Rizzuto of Unfair Dismissals Direct (UDD).

[2] Upon being contacted for the purposes of conciliation on 8 October 2018, Farmhaul advised the Commission that it declined to participate. The conciliation therefore could not proceed on 8 October 2018 and the matter was referred for arbitration. Directions were issued on the same day requiring Mr Curtis to file his material by no later than noon on 29 October 2018 and Farmhaul to file its reply material by no later than noon on 19 November 2018.

[3] On 10 October 2018, the Commission issued a Notice of Listing to the parties scheduling the matter for Arbitration Conference/Hearing on 17-18 December 2018. The Notice of Listing also contained the same directions previously issued on 8 October 2018.

[4] On the evening of 29 October 2018, as no material was received from Mr Curtis or UDD, the Commission attempted to telephone UDD in relation to Mr Curtis’ outstanding material. No contact was established and a voicemail message was left to request a return call.

[5] On 30 October 2018, the Commission attempted a further telephone call to UDD in relation to Mr Curtis’ outstanding material. Again, this was unsuccessful and a voicemail message was left requesting an urgent return call. Following this, email correspondence was sent to both Mr Curtis and Mr Rizzuto of UDD warning that in the absence of the Commission receiving advice from them about when material was intended to be filed by 9:00am on 31 October 2018, the matter would be listed for a non-compliance hearing.

[6] Later on 30 October 2018, the Commission received an email from Mr Rizzuto advising that Mr Curtis was exploring his options with respect to representation at the next stage of the unfair dismissal process and requesting an extension for the filing of his material to a date on or after Monday, 12 November 2018.

[7] On 31 October 2018, an amended Notice of Listing was sent to the parties with amended directions, requiring Mr Curtis to file his material by no later than noon on 12 November 2018.

[8] As no material was received from Mr Curtis or UDD by noon on 12 November 2018, three telephone calls were attempted to UDD on 12 and 13 November 2018. A fourth call was successful on 13 November 2018, during which UDD was advised that it needed to inform the Commission as to whether Mr Curtis would file, request an extension or discontinue his matter as soon as possible or else the matter would be listed for a non-compliance hearing. UDD was further advised that the matter would be listed for a non-compliance hearing if no advice was received by the afternoon of 14 November 2018.

[9] On the evening of 13 November 2018, the Commission received a Form F54 – Notice of representative ceasing to act from UDD via email. Mr Curtis was carbon copied into the email correspondence.

[10] On 14 November 2018, an email was sent to Mr Curtis warning that the matter would be listed for a non-compliance hearing if he did not advise the Commission when he intended on filing his material by 4:00PM that afternoon. Later the same day, the Commission spoke with Mr Curtis via telephone and advised him that the matter would be listed for a non-compliance hearing if he did not file his material or request an extension for the filing of his material. Following this, an email was sent to Mr Curtis attaching the amended Notice of Listing dated 31 October 2018 and the Commission templates to assist in preparing his material.

[11] On 15 November 2018, the Commission spoke with Mr Curtis via telephone urge him to put in his extension request as soon as possible or the matter would be listed for a non-compliance hearing. Mr Curtis advised that he was unable to open the Commission templates sent to him the day before, and that he would send an extension request through shortly. Following the telephone conversation, the Commission sent Mr Curtis an email with the Commission templates in PDF format. Later the same morning, Mr Curtis sent an email to the Commission seeking a two week extension for the filing of his material.

[12] On 16 November 2018, an amended Notice of Listing was sent to the parties with amended directions, requiring Mr Curtis to file his material by no later than noon on 19 November 2018.

[13] As no material was received from Mr Curtis on 19 November 2018, the Commission attempted to telephone him on two occasions on 19 and 20 November 2018. Both attempts were unsuccessful and voicemail messages were left on each occasion to request his urgent return call. An email was also sent to Mr Curtis on 20 November 2018 warning that in the absence of receiving his material or a further extension request by 2:00PM the next day, the matter would be listed for a non-compliance hearing.

[14] Mr Curtis did not respond to the Commission’s correspondence. As a result, the matter was listed for a non-compliance hearing and a Notice of Listing was sent to the parties on 21 November 2018 to notify them of this.

[15] The non-compliance hearing proceeded before me on 23 November 2018. Mr Curtis could not be contacted. Farmhaul made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Curtis’ failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Farmhaul’s oral application.

[16] Following the non-compliance hearing, correspondence was sent to Mr Curtis’ nominated email and postal addresses advising him of Farmhaul’s s.399A application. The postal correspondence was sent via express post. Mr Curtis was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 30 November 2018. The correspondence also noted that if the Commission did not receive a response, Mr Curtis’ application for relief from unfair dismissal would be dismissed. A review of the express post tracking ID indicated that the correspondence was returned to the Commission on 5 December 2018 as “Receiver not known at address”.

[17] In response to the Commission’s correspondence dated 23 November 2018, Mr Curtis sent an email on 29 November 2018 stating, “I’m sorry for not replying but I’ve been out of the country until today can you call me over this stuff thanks” [sic]. The Commission attempted to telephone Mr Curtis on two occasions on 29 November 2018 and 3 December 2018 in relation to his email but was unable to reach him until the third attempt made on 4 December 2018. During this telephone conversation, the Commission confirmed with Mr Curtis that he still wished to proceed with his application and urged him to file submissions as to why his matter should not be dismissed as soon as possible.

[18] Following the telephone conversation on 4 December 2018, Mr Curtis emailed the Commission stating, “I’m sorry I couldn’t do all that stuff in time i was away overseas from the 19th to the 29th of November i got the email on the 30th when i got back to Toowoomba i will put a picture on to show the dates i left & returned” [sic].

[19] To date, Mr Curtis has not filed further submissions nor sent the Commission the picture as foreshadowed in his email on 4 December 2018.

[20] 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.

[21] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. I will determine the application on the papers.

[22] In response to the correspondence from the Commission dated 23 November 2018 directing him to file submissions and other documentary material in respect of the s.399A application by close of business on 30 November 2018, Mr Curtis has sent two emails on 29 November 2018 and 4 December 2018.

[23] The procedural history of this matter involves Mr Curtis:

a) Not complying with the Commission’s directions to file and serve his material by noon on 29 October 2018;

b) Not complying with the Commission’s directions to file and serve his material by noon on 12 November 2018, despite having been granted an extension;

c) Not complying with the Commission’s directions to file and serve his material by noon on 19 November 2018, despite having been granted an extension;

d) Failing to appear at a non-compliance hearing before me on 23 November 2018; and

e) Failing to make any submissions in reason to the Commission’s direction that he respond to the s.399A application beyond stating “I’m sorry I couldn’t do all that stuff in time i was away overseas from the 19th to the 29th of November i got the email on the 30th when i got back to Toowoomba i will put a picture on to show the dates i left & returned” [sic].

[24] To date, I have not received the ‘picture’ Mr Curtis indicated he would send and I make these observations about his claimed overseas travel:

● On 15 November 2018, Mr Curtis sent an email to the Commission requesting a two week extension to file his material. If it had been granted, his material would have been due on 29 November 2018. It therefore seems unusual that he would request an extension for a period that almost entirely coincided with his claimed period of overseas travel. In fact, it seems pointless to have requested this period if indeed he was to be overseas.

● After Mr Curtis requested the extension on 15 November 2018, it was granted and he was directed to file his material by noon on 19 November 2018. This direction was sent to his nominated email address on 16 November 2018. Therefore, from that time Mr Curtis was on notice that his material was due on 19 November 2018.

● Mr Curtis was not overseas on 16 November 2018 and nor did he advise the Commission that he would be overseas from 19-29 November 2018 on either 15 or 16 November 2018 or at any other time prior to 19 November 2018. If he had done so, the non-compliance hearing would not have been listed for 23 November 2018.

● The Commission had sent Mr Curtis templates to assist him in preparing his material on 14 and 15 November 2018, at least four days before the date he says he was first overseas. I am therefore satisfied that there was sufficient time for Mr Curtis to prepare and file his material by noon on 19 November 2018

[25] Having regard to these matters, I am not satisfied that Mr Curtis has provided a reasonable explanation for his failures to attend the non-compliance hearing or 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 Curtis. At no stage prior to his claimed overseas travel did Mr Curtis advise the Commission he would be overseas. In any event, he had the opportunity to complete and file his material in compliance with the directions prior to his departure. Even now, with it being apparent that Farmhaul has made a s.399A application, Mr Curtis has not provided a substantial response to it. In these circumstances, I am satisfied that Mr Curtis 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 Curtis’ application.

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

DEPUTY PRESIDENT

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