Jason Murdoch v BDP Industrial Services Pty Ltd

[2020] FWC 3318

[2020] FWC 3318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Murdoch
v
BDP Industrial Services Pty Ltd
(U2020/4321)

COMMISSIONER BISSETT MELBOURNE, 26 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 7 April 2020 Mr Jason Murdoch (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant advised that BDP Industrial Services Pty Ltd (Respondent) had terminated his employment.

[2] The matter was listed for a conciliation conference by telephone on 14 May 2020. The Applicant did not attend that conciliation or contact the Commission to advise why he was not able to attend.

[3] Following that conciliation conference, the Commission emailed correspondence to the Applicant advising that if he wished to proceed to a further conciliation, he was to reply within 2 working days. No such reply was received.

[4] On 19 May 2020 the Commission emailed correspondence to the Applicant directing him to advise whether he wished to continue his unfair dismissal application.

[5] On 25 May 2020 the Applicant responded by email advising he wished to continue his application and asked what the next steps were.

[6] On 26 May 2020 the Commission issued a Notice of Listing to the parties advising the matter was listed for a Jurisdiction (Genuine Redundancy) and Arbitration Conference/Hearing on 10 – 12 August 2020.

[7] Later that day the Respondent emailed correspondence to the Commission making an application that the Applicant’s unfair dismissal application be dismissed. This application was forwarded to the Applicant.

[8] On 27 May 2020 the Commission emailed correspondence to the parties advising that the Respondent’s application to dismiss has been denied. That correspondence sought the views of the parties on the matter being scheduled for a Member Assisted Conciliation. The parties were directed to provide their views by 29 May 2020.

[9] On 30 May 2020 the Applicant emailed correspondence to the Commission detailing the merits of his unfair dismissal claim. This correspondence did not address the direction to provide his views on participating in a Member Assisted Conciliation.

[10] On 1 June 2020 the Commission attempted to contact the Applicant on his nominated telephone number. The Applicant did not answer this call and the Commission was not able to leave a voicemail message. The Commission attempted to contact the Applicant on a second telephone number listed on the Applicant’s application. This number returned a voicemail greeting of someone other than the Applicant. The Commission left a voicemail message advising the Applicant has provided the Commission with the telephone number and requested a return call from the Applicant. No return call was received.

[11] Later that day the Commission sent an SMS message to the Applicant’s nominated telephone number advising the Commission had attempted to contact him and requesting a return call. The Applicant did not contact the Commission.

[12] On 2 June 2020 the Commission contacted the Applicant on his nominated telephone number and advised they were seeking clarification on his views on participating in a Member Assisted Conciliation. The Applicant advised he was in favour of the matter being listed for a Member Assisted Conciliation and advised he thought it was the best way to resolve his unfair dismissal matter.

[13] On 3 June 2020 the Commission sent a Notice of Listing to the parties advising the matter was listed for a Member Assisted Conciliation by telephone on 16 June 2020. That Notice of Listing requested the parties confirm their appearances and the telephone number on which they could be reached for the Member Assisted Conciliation by no later than 15 June 2020. The Applicant did not confirm his appearance or telephone number.

[14] On 15 June 2020 the Commission emailed correspondence to the Applicant requesting he urgently confirm his telephone number for the Member Assisted Conciliation. That correspondence advised that if no response was received, the Commission would contact him on his nominated telephone number. The Commission also attempted to contact the Applicant by telephone. A voicemail message was left advising the same as the email correspondence.

[15] On 16 June 2020 the Commission attempted to contact the parties for the Member Assisted Conciliation. The Commission attempted to contact the Applicant on his nominated telephone number 3 times. The Applicant did not answer his nominated telephone number and 2 voicemail messages were left. The Applicant did not return the Commission’s call nor provide any reason as to his unavailability for the scheduled Member Assisted Conciliation.

[16] After the Member Assisted Conciliation, the Commission emailed correspondence to the Applicant advising that the Commission was considering dismissing his application under s.587 of the FW Act due to his failure to communicate with the Commission or respond to telephone calls in relation to scheduled conciliations. The Applicant was directed to file any submissions as to why the Commission should not dismiss his application by 23 June 2020. No such submissions were received.

[17] To date, the Applicant has not filed any material with the Commission and has not responded to the Commission’s correspondence. The Applicant has failed to comply with the directions to file material by 23 June 2020.

[18] Section 587 of the FW Act states:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[19] The Applicant has had a number of opportunities to engage with the Commission for the purpose of dealing with his application by conciliation. Despite commitment by him to participate in a Member Assisted Conciliation he has, ultimately, failed to attend the listed conferences or provide any explanation for his non-participation. Since the listing from the most recent consolation the Applicant has ignored all attempts by the Commission to contact him and has not otherwise communicated with the Commission. In these circumstances I am not satisfied that the Applicant wishes to have his application dealt with further.

[20] Accordingly, I have decided to dismiss the Applicant’s unfair dismissal application pursuant to s.587(1)(c) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

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