Jason Malcolm v Prestige Painters Brisbane

[2017] FWC 2730

[2017] FWC 2730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Malcolm
v
Prestige Painters Brisbane
(U2017/803)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 MAY 2017

Application for an unfair dismissal remedy.

[1] On 26 January 2017, Mr Jason Malcolm made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Malcolm stated that he was dismissed by Prestige Painters Brisbane (PPB) on 5 January 2017.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application lodged on 1 February 2017, PPB raised jurisdictional objections to Mr Malcolm’s application, stating he did not meet minimum employment period and that his dismissal was consistent with the Small Business Fair Dismissal Code.

[3] The matter was subsequently listed for conciliation at 10:45am on 1 March 2017. On 20 February 2017, Mr Malcolm sent an email to the Fair Work Commission (the Commission) asking if there was anything required from him prior to conciliation, and advising that he “can [sic] attend the conciliation as i have started a new job and we have a new system rolling out that day”. The Commission sought clarification of this advice from Mr Malcolm’s then representative, Mr Kelemen, who confirmed in a subsequent telephone conversation with the Commission that it should be disregarded.

[4] On 1 March 2017, the telephone conciliation listed for 10:45am could not take place due to the unavailability of Mr Malcolm. Although Mr Malcolm’s then representative Mr Kelemen was available, he advised that he could not proceed without receiving instructions from Mr Malcolm. The Commission subsequently contacted Mr Malcolm by telephone at approximately 12:35pm, and was advised that the reason he did not attend conciliation at 10:45am was due to work commitments conveyed in his email of 20 February 2017. After receiving instructions from Mr Malcolm, Mr Kelemen confirmed that a further conciliation date was requested. The conciliator advised that this request would need to be made in writing to the Commission.

[5] On 3 March 2017, Mr Kelemen sent an email to the Commission requesting a second conciliation. A further Notice of Listing was sent to parties on 6 March 2017, listing the matter for conciliation at 10:15am on 23 March 2017.

[6] On 6 March 2017, Mr Malcolm sent an email to the Commission advising that he could not attend the relisted conciliation. Mr Kelemen was not copied in on this correspondence so a copy of the email was forwarded to him by the Commission.

[7] As no additional advice or information regarding attendance was received from either Mr Malcolm or Mr Kelemen, on 9 March 2017 the relisted conciliation was cancelled and the matter allocated for further scheduling.

[8] On 20 March 2017, Mr Kelemen filed a Form F54 – Notice of representative ceasing to act.

[9] On 21 March 2017, the matter was listed for Jurisdiction and Arbitration Conference/Hearing on 22-24 May 2017. The Notice of Listing sent to parties contained a requirement that Mr Malcolm file his material by no later than noon on Monday, 10 April 2017. Copies of this notice were sent both electronically and by post.

[10] Between 11 and 20 April 2017, the Commission attempted to telephone Mr Malcolm four times regarding his outstanding material and each time a voicemail message was left requesting that he urgently return the Commission’s call. In the last call, the voicemail message also advised Mr Malcolm that the matter would be listed for a non compliance hearing on 21 April 2017 and included details of what that would involve.

[11] As Mr Malcolm did not comply with his requirement to file material, the matter was listed for a non compliance hearing before Commissioner Roe on 21 April 2017.

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

[13] On 21 April 2017, Mr Malcolm was sent correspondence informing him of PPB’s s.399A application. Mr Malcolm was directed to file submissions and other documentary material in respect of PPB’s application by close of business on Friday, 28 April 2017. Mr Malcolm was advised that if he failed to comply with this direction, his application would be dismissed.

[14] Mr Malcolm did not file any material with the Commission.

[15] 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.

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

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

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Malcolm has failed to respond to the numerous attempts by the Commission to contact him. He has shown no willingness to prosecute his case and has provided no explanation for his failure to comply with directions. In these circumstances, I will exercise my discretion under s.399A(1)(b) and dismiss Mr Malcolm’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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