John Mading v Drake Australia Pty Ltd

[2019] FWC 6507

[2019] FWC 6507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Mading
v
Drake Australia Pty Ltd
(U2019/6773)

COMMISSIONER BISSETT MELBOURNE, 19 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] On 19 June 2019, Mr John Mading (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Drake Australia Pty Ltd (Respondent) on 30 May 2019.

[2] The matter was listed for conciliation on 1 August 2019 however the matter was not resolved.

[3] On 15 August 2019, directions were issued to the parties and the matter was listed for Extension of time and Jurisdiction (Minimum Employment Period – Non regular and systematic casual employee) Conference/Hearing on 20 and 23 September 2019. The Applicant was directed to file his material by no later than noon on 29 August 2019 (regarding Extension of time) and 12 September 2019 (regarding Minimum Employment Period). No such material was received.

[4] On 30 August 2019, correspondence was sent by the Commission to the Applicant’s nominated email address regarding his failure to file his material by the required date. The Applicant was asked to advise the Commission when he intended to file his submissions. The Applicant failed to respond to the Commission’s correspondence.

[5] At 2.26 pm on 2 September 2019, correspondence was emailed to the Applicant with regards to his overdue material. He was requested to contact the Commission by noon on 3 September 2019 to advise when he intends to file submissions. The correspondence stated that if the Commission did not receive a response, his matter was at risk of being listed for a non-compliance hearing on 6 September 2019.

[6] At 4.54 pm on 2 September 2019, the Commission attempted to call the Applicant regarding his overdue material. The Applicant did not answer the calls and a voicemail message was left each time reminding him of the overdue material and requesting a return call. The Applicant failed to return the Commission’s call.

[7] On 4 September 2019, as no response from the Applicant had been received by the Commission, a Notice of Listing was issued to the parties scheduling a Non-Compliance Hearing for 6 September 2019.

[8] The Non-Compliance Hearing proceeded before Deputy President Colman on 6 September 2019 at 12 noon. The Applicant could not be contacted. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with directions of the Commission. Deputy President Colman waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[9] At 3.58 pm on 6 September 2019, following the Non-Compliance Hearing, correspondence was sent to the Applicant’s nominated email address advising him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by no later than 4.00 pm on 16 September 2019. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[10] At 5.37 pm on 6 September 2019, the Applicant telephoned the chambers of Deputy President Colman and left a voicemail message saying he was returning the call.

[11] On 12 September 2019, the Commission attempted to call the Applicant regarding the Non-Compliance Hearing and his return call. The Applicant did not answer the call and a voicemail message was left requesting he file submissions as to why his application should not be dismissed by 16 September 2019. He was also advised he could discontinue his application by telephone or by email.

[12] To date, the Applicant has not filed any material with the Commission.

[13] Section 399A of the FW 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.

[14] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact him and has provided no explanation to the Commission for his failure to comply with the directions of the Commission. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order giving effect to this decision will be issued separately.

COMMISSIONER

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