Jeremy Olsen v New Competitive Drilling

[2016] FWC 3470

[2016] FWC 3470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeremy Olsen
v
New Competitive Drilling
(U2016/4767)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 JUNE 2016

Application for relief from unfair dismissal.

[1] On 20 February 2016, Mr Jeremy Olsen made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Olsen’s employment had been terminated by New Competitive Drilling (NCD) on 31 January 2016.

[2] The matter was listed for conciliation, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Olsen was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 12 May 2016.

[4] Mr Olsen did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Kovacic on 19 May 2016.

[5] Mr Olsen did not attend the non compliance hearing. NCD made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Olsen had failed to comply with the direction of the Fair Work Commission. Deputy President Kovacic waived compliance with the Fair Work Commission Rules 2013 and accepted NCD’s oral application.

[6] On 20 May 2016, Mr Olsen was sent correspondence informing him of NCD’s section 399A application. Mr Olsen was directed to file submissions and other documentary material in respect of NCD’s application by close of business, on 27 May 2016. Mr Olsen was advised that if he failed to comply with this direction, his application would be dismissed.

[7] On 25 May 2016, Mr Olsen sent a number of emails which contained diary entries he wrote in the lead up to his termination. In addition to this material, Mr Olsen requested that the Commission reconsider his non compliance. He explained that he received the letter for the non compliance hearing on 23 May 2016 (four days after the hearing) and did not receive any emails with that same information. Mr Olsen also said that he was having difficulty with adjusting to his loss of employment.

[8] The Commission made two attempts to contact Mr Olsen on 26 and 27 May 2016 to confirm whether the information provided on 25 May 2016 was what he wanted to rely on in response to the correspondence 20 May 2016. Mr Olsen did not respond to either of these attempts.

[9] NCD was provided with an opportunity to provide their views in relation to the filing of Mr Olsen’s material. On 3 June 2016, NCD advised that it still wishes for the matter to be dismissed as it has caused significant cost to the business. It submits that there has been a number of attempts to settle the matter throughout the process, that Mr Olsen has had ample time to prepare his material and that the material he did supply is not necessarily accurate.

Conclusion

[10] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission. 1

[11] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[12] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 3.

[13] In summary, that decision said:

● the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;
● directions play an important role in case management;
● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
● the circumstances of each case is central;
● a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant
● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[14] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application.

[15] The power to dismiss an application, if the non-compliance was unreasonable, is discretionary. I am satisfied in this circumstance that Mr Olsen had unreasonably failed to comply with a direction of the Commission. However, he has not indicated an unwillingness to have his matter ready for hearing and he has now filed his material. In these circumstances, I will dismiss NCD’s section 399A application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1 S.399A of the Fair Work Act 2009

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163]

 3   PR 956665

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