Jayden Cameron v Jones Earthworks/Grampians Sandstone

[2017] FWC 99

[2017] FWC 99

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jayden Cameron
v
Jones Earthworks/Grampians Sandstone
(U2016/13430)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 JANUARY 2017

Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A.

[1] On 8 November 2016, Mr Jayden Cameron made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Cameron’s employment had been terminated by Jones Earthworks/Grampians Sandstone (Jones Earthworks) on 8 November 2016.

[2] On 16 November 2016, Jones Earthworks filed a Form F3 – Employer Response to Unfair Dismissal Application. In its Form F3, Jones Earthworks stated that it had four employees and that Mr Cameron commenced employment on 8 September 2016. Jones Earthworks further stated that Mr Cameron was a casual employee who was still on a trial period at the time of his termination.

[3] The matter was listed for conciliation on 25 November 2016, however, it could not take place as Mr Cameron did not attend. Consequently, the Fair Work Commission (Commission) sent correspondence to parties stating that if it did not hear from Mr Cameron within the following 48 hours, the matter would be referred for Arbitration hearing before a Member of the Commission.

[4] Mr Cameron did not reply to this correspondence. On 29 November 2016, a further letter was sent to parties confirming that the matter had been referred for Arbitration hearing.

[5] On 6 December 2016, the Commission sent an email to Jones Earthworks seeking confirmation as to whether, based on the information provided in its Form F3, it intended to pursue a jurisdictional objection of Minimum Employment Period – Small Business.

[6] On 7 December 2016, Jones Earthworks telephoned the Commission with an inquiry regarding the email correspondence of 6 December 2016. The Commission gave an explanation for the jurisdictional objection of Minimum Employment Period – Small Business and advised this relates to the continuous service of an employee. The Commission also advised Jones Earthworks that if it was seeking to pursue a jurisdictional objection, it would need to file a Form F4 – Objection to Application for an Unfair Dismissal Remedy. Jones Earthworks also requested information as to the options available to it following Mr Cameron’s non-attendance at conciliation. Jones Earthworks was advised that if it sought to make an application under s.399A of the Act for Mr Cameron’s application to be dismissed, it would need to lodge a Form F1 making this request. An email attaching a Form F1 was sent to Jones Earthworks providing information regarding s.399A applications.

[7] On 7 December 2016, an email attaching a Form F1 was received from Jones Earthworks requesting that Mr Cameron’s application be dismissed pursuant to s.399A of the Act. This correspondence was forwarded to Mr Cameron.

[8] On 12 December 2016, the Commission telephoned Jones Earthworks to inquire as to its intentions regarding the pursuit of a jurisdictional objection in relation to Mr Cameron’s application. The Commission advised that while it had received the s.399A application from Jones Earthworks, it had not received a Form F4 raising any jurisdictional objection. Jones Earthworks confirmed it did intend to raise such an objection and a Form F4 was received on 13 December 2016. This Form F4 raised a jurisdictional objection relating to the Minimum Employment Period and another on the basis of Mr Cameron having been a casual employee.

[9] The matter was subsequently listed for Jurisdiction Conference/Hearing by telephone on 13 January 2017. On 13 December 2016, Jones Earthworks contacted the Commission and submitted that due to an upcoming shutdown period, it would not be able to attend the telephone Conference/Hearing scheduled for 13 January 2017. It foreshadowed the intention to request an adjournment. Jones Earthworks was advised that following receipt of its s.399A application, the Commission would be sending Mr Cameron correspondence stating that he would have seven days to file submissions providing reasons as to why his application should not be dismissed. In light of this, Jones Earthworks stated that it would wait until the following week before making its request for an adjournment.

[10] On 14 December 2016, the Commission sent a letter to Mr Cameron advising that a s.399A application had been received from Jones Earthworks. He was directed by me to provide submissions by close of business on 21 December 2016 as to why his application should not be dismissed.

[11] Mr Cameron did not respond to this correspondence or comply with the direction. An attempt by the Commission to contact Mr Cameron by telephone on 23 December 2016 was unsuccessful.

[12] An email was also sent to Mr Cameron from the Commission on 23 December 2016, noting that he had neither responded to the letter of 14 December 2016 nor provided submissions as directed. This email correspondence also included a request that Mr Cameron urgently contact the Commission and advised that the Commission would attempt once more to contact him by telephone. The email from the Commission further stated that if it did not hear from Mr Cameron following this final attempt to contact him, his application would be dismissed.

[13] On 4 January 2017, a final attempt was made to contact Mr Cameron via telephone. It was unsuccessful. A voice message was left requesting that Mr Cameron contact the Commission but there was no reply.

[14] To date, Mr Cameron has neither responded to the numerous attempts to contact him nor filed any material with the Commission in relation to the s.399A application.

[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 Cameron 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. Despite numerous requests and attempts to contact Mr Cameron, he has not responded. Mr Cameron has shown no willingness to prosecute his case. He has provided no explanation for his failure to attend the conference conducted by the Commission in relation to his application and nor has he complied with the direction to file material. I find his failure in both respects unreasonable. In these circumstances, I will exercise my discretion and dismiss Mr Cameron’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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