Jermaine Wilson v Pipemakers Australia Pty Ltd

[2017] FWC 6662

[2017] FWC 6662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jermaine Wilson
v
Pipemakers Australia Pty Ltd
(U2017/10564)

DEPUTY PRESIDENT CLANCY MELBOURNE, 12 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 28 September 2017, Mr Jermaine Wilson made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Wilson said he was notified of his dismissal on 12 September 2017, with it taking effect the same day.

[2] The matter was listed for conciliation on 24 October 2017, however it did not resolve. Consequently, on 3 November 2017, directions for the filing of material were sent to Mr Wilson’s representative and Pipemakers Australia Pty Ltd (Pipemakers). On 10 November 2017, the directions and notification of hearing dates were sent to Mr Wilson, his representative and Pipemakers. Mr Wilson was directed to file an outline of submissions, any witness statements and other documentary material in support of his application by noon on 27 November 2017.

[3] On 27 November 2017, Mr Wilson’s representative filed a Form F54 – Notice of Representative Ceasing to Act. An SMS message was sent to Mr Wilson at 10.45am that day, reminding him his written submissions were due to be filed that day. An attempt to telephone Mr Wilson was also made, however there was an automated message to the effect the person called was not available. No voicemail was able to be left.

[4] On 28 November 2017, a further attempt to telephone Mr Wilson was made which was also unsuccessful. An email was then sent to Mr Wilson confirming no material had been received. Mr Wilson was advised if he wished to proceed with his application, he was required to file an extension to file request, or to alternatively file his submissions. It was noted in the absence of a response, the matter would be listed for a non-compliance hearing on 1 December 2017.

[5] On 29 November 2017, another attempt to telephone Mr Wilson was made which was again unsuccessful; therefore an SMS message was sent requesting he telephone the Commission regarding his written submissions.

[6] On 30 November 2017, a final attempt to telephone Mr Wilson in relation to his outstanding material was made, though he could not be contacted. Later that day, a non-compliance hearing for 1 December 2017 was listed, with Mr Wilson notified via his nominated email address and express post.

[7] The non-compliance hearing proceeded before Commissioner Bissett on 1 December 2017. Three attempts were made to contact Mr Wilson, however he was not able to be contacted. Pipemakers made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Wilson had failed to comply with a direction of the Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Pipemakers’ s.399A application. Correspondence was then sent to Mr Wilson informing him of Pipemakers’ s.399A application. Mr Wilson was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 8 December 2017. This correspondence was sent via email and express post, of which the tracking number indicates was successfully delivered on 4 December 2017.

[8] To date, Mr Wilson has not filed any material with the Commission.

[9] 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.

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

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

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Wilson has failed to respond to the many attempts by the Commission to contact him. Besides initially filing his application and attending the conciliation, Mr Wilson has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Wilson’s application.

[13] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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