Jayden Abbott v Aussie Guard Rail Pty Ltd

[2018] FWC 7681

[2018] FWC 7681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jayden Abbott

v

Aussie Guard Rail Pty Ltd

(U2018/10432)

Deputy President Clancy MELBOURNE, 18 DECEMBER 2018

Application for an unfair dismissal remedy.

1. On 9 October 2018, Mr Jayden Abbott 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 Abbott said his employment had been terminated by Aussie Guard Rail Pty Ltd (AGR) on 18 September 2018. The application indicated that Mr Abbott was represented by Supportah Ops Pty Ltd t/a Industrial Relations Claims (IRC).

1. A Notice of Listing was sent to the parties on 12 October 2018 scheduling the matter for a conciliation on 6 November 2018.

1. On the evening of 5 November 2018, the Commission received a Form F54 – Representative ceasing to act from IRC.

1. On 6 November 2018, the Commission conciliator contacted IRC and was advised that it had ceased acting for Mr Abbott because it was no longer able to contact him. As Mr Abbott could not be contacted, despite two attempted telephone calls to him and no ability to leave voicemail messages, the conciliation scheduled for 6 November 2018 was unable to proceed.

1. On 8 November 2018, the Commission emailed correspondence to the parties advising that the matter had been referred for arbitration.

1. A Notice of Listing was sent to the parties on 13 November 2018 scheduling the matter for Arbitration Conference/Hearing on 16-18 January 2019. Directions were also issued requiring Mr Abbott to file material in support of his application by no later than noon on 29 November 2018 and AGR to file its reply material by no later than noon on 20 December 2018.

1. Mr Abbott did not file his material as directed by 29 November 2018. The Commission attempted to telephone him on 4 and 5 December 2018 but both attempts were unsuccessful, and voicemail messages were left on each occasion. Following the second attempt on 5 December 2018, the Commission emailed correspondence to Mr Abbott warning 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 by 2:00PM the next day.

1. As Mr Abbott did not respond to the Commission’s correspondence, the matter was listed for a non-compliance hearing and Notice of Listing was sent to the parties notifying them of this.

1. The non-compliance hearing proceeded before me on 7 December 2018. Mr Abbott could not be contacted. AGR made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Abbott’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted AGR’s oral application.

1. Following the non-compliance hearing, correspondence was sent to Mr Abbott’s nominated email and postal addresses advising him of AGR’s s.399A application. The postal correspondence was sent via express post. Mr Abbott was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 14 December 2018. The correspondence also noted that if the Commission did not receive a response, Mr Abbott’s application for relief from unfair dismissal may be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Mr Abbott’s nominated postal address on 13 December 2018.

1. On 18 December 2018, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing scheduled for 16-18 January 2019.

1. To date, Mr Abbott has not filed any material with the Commission.

1. 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.

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

1. As Mr Abbott did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Abbott has failed to respond to the numerous attempts made by the Commission to contact him since receiving notice that IRC was no longer acting for him on 5 November 2018. Apart from initially filing his application, Mr Abbott has otherwise not exhibited a willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with the Commission’s directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Abbott’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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