James Simpson v Southern Cross Crane Service Pty Limited T/A Southern Cross Crane Service

[2018] FWC 289

[2018] FWC 289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
ss.394, 399A—Unfair dismissal

James Simpson
v
Southern Cross Crane Service Pty Limited T/A Southern Cross Crane Service
(U2017/10704)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 15 JANUARY 2018

Application for an unfair dismissal remedy – Fair Work Act 2009 (Cth) s.399A – application by respondent to dismiss originating application because applicant has failed to comply with direction – applicant’s failure found to be unreasonable – s.399A application granted – originating application dismissed.

[1] On 4 October 2017, Mr James Simpson applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Southern Cross Crane Service Pty Limited T/A Southern Cross Crane Service (the respondent).

[2] In its response to Mr Simpson’s application, the respondent raised a jurisdictional objection, being that he was not dismissed.

[3] On 24 November 2017, following an unsuccessful conciliation conference, I listed this matter for hearing on 16 January 2018, in relation to both the respondent’s jurisdictional objection and the merits of Mr Simpson’s application. I also issued directions for the filing of material.

[4] On 15 December 2017, the respondent filed an outline of submissions and three witness statements in support of its jurisdictional objection, in accordance with the directions.

[5] The directions included that Mr Simpson’s outline of submissions, witness statements and any other documentary material on which he wished to rely both in response to the respondent’s jurisdictional objection and in support of his application for an unfair dismissal remedy were due by 4:00 pm on 5 January 2018. My chambers did not receive any material or otherwise hear from Mr Simpson by this deadline.

[6] On 9 January 2018, my chambers attempted to contact Mr Simpson on the mobile phone number he provided on his originating application form, but only received an automated message advising the call could not be completed. My chambers subsequently sent Mr Simpson an email asking him whether he wished to proceed with his application, and if so, the status of the overdue material.

[7] On 10 January 2018, my chambers attempted to contact Mr Simpson on the mobile phone number provided, but this was again unsuccessful. My chambers then sent an email to both Mr Simpson and the respondent noting that the latter could apply under s.399A of the Act to dismiss Mr Simpson’s originating application, and advising that if the respondent wished to make such an application, it should do so by 12:00 pm on 12 January 2018.

[8] On 12 January 2018, the manager of the respondent, Mr Wayne Maddern, emailed my chambers to apply to dismiss Mr Simpson’s application under s.399A of the Act. My chambers forwarded Mr Maddern’s email to Mr Simpson and invited him to make any submissions he might wish to make about the respondent’s s.399A application by 12:00 pm today on 15 January 2018.

[9] Earlier today, 15 January 2018, Mr Simpson telephoned my chambers to advise that he had been away for a couple of weeks, and that he wished to press his application. This was the first contact Mr Simpson had made with my chambers since the unsuccessful conciliation conference. He subsequently emailed my chambers stating:

‘I wish to continue with my unfair dismissal application which is due to be heard tomorrow.

My apologies for not responding to your previous emails. I have simply misunderstood the process and was under the impression that everything was in place for tomorrow. I have also been overseas with no access to my emails and only returned yesterday.

Please consider to proceed [sic] with my application and I'll ensure all relevant documentation is submitted by 12pm today.’

[10] Following this, Mr Simpson sent another email attaching his own witness statement in relation to the circumstances surrounding the end of his employment by the respondent.

Consideration

[11] Section 399A of the Act states:

‘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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.’

[12] It is clear that Mr Simpson has failed to comply with my direction to file relevant material by 4:00 pm on 5 January 2018. Further, having reviewed Mr Simpson’s emails and my chambers’ file note in respect of his telephone call earlier today, I do not consider that he has provided any reasonable basis for failing to do so.

[13] Mr Simpson has not explained what his misunderstanding of the process was, or how the misunderstanding meant that his failure to comply with my direction was not unreasonable. If Mr Simpson did not understand what he had to do after reading the Notice of Listing and directions emailed to him on 24 November 2017, the reasonable course of action would have been to contact my chambers to seek clarification. He did not do so at any point before the 5 January 2018 deadline.

[14] If Mr Simpson’s misunderstanding was that he did not realise he had to file material in support of his application and/or in response to the respondent’s jurisdictional objection, I do not find this plausible. This is because at the conclusion of the conciliation conference, I informed the parties that I would issue directions for both of them to file written material in preparation for the hearing. Those directions were then issued shortly after, via email to the same email address that Mr Simpson used to contact my chambers earlier today. Mr Simpson does not contend that he did not receive them. Mr Simpson then received the respondent’s material on 15 December 2017. I do not think it is tenable to contend that Mr Simpson would have thought that the respondent had to file written material, but he did not. It is also disingenuous to suggest that notwithstanding all of this, Mr Simpson would still believe that he did not need to do anything between the unsuccessful conciliation and the hearing of his application.

[15] Finally, I do not accept that Mr Simpson’s being overseas for the last couple of weeks is a reasonable basis for failing to comply with my directions. Those directions were issued nearly two months ago, well before the period in which Mr Simpson says he did not have email access.

[16] I therefore find that s.399A(1)(b) of the Act is satisfied in this case.

Conclusion

[17] Pursuant to s.399A(1)(b) of the Act and on application by the respondent, Mr Simpson’s application for an unfair dismissal remedy is dismissed. The hearing listed for tomorrow, 16 January 2018, will therefore not proceed. The listing will be vacated accordingly later today.

SENIOR DEPUTY PRESIDENT

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