John Simpson v Transport Workers' Union of Australia-Victorian/Tasmanian Branch

[2020] FWC 4546

[2020] FWC 4546

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Simpson
v
Transport Workers’ Union of Australia-Victorian/Tasmanian Branch
(U2020/5020)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 28 AUGUST 2020

Application for an unfair dismissal remedy - application dismissed pursuant to s.399A of the Act.

[1] On 16 April 2020, Mr John Simpson (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Simpson submits that his employment had been terminated by the Transport Workers’ Union of Australia-Victorian/Tasmanian Branch (TWU, Respondent) on 27 March 2020.

[2] The matter was conciliated on 20 May 2020 however was unable to be resolved.

[3] Consequently, Directions were issued and the matter was listed for hearing on 13 August 2020.

[4] Mr Simpson was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by 29 June 2020.

[5] On 30 June 2020, Mr Simpson requested an extension of four weeks to file his material as he was incapacitated due to health reasons.

[6] On 2 July 2020, the TWU advised that the Union made no comment regarding Mr Simpson’s extension request.

[7] On 21 July 2020, new Directions were issued and the matter was listed for hearing on 7 September 2020. Mr Simpson was directed to file his documents by 11 August 2020.

[8] On 28 July 2020, the matter was listed for Member Assisted conciliation (MAC) before another Member of the Commission, where the matter did not resolve.

[9] On 17 August 2020, my associate telephoned Mr Simpson and left a voicemail message following up his non-compliance with Directions as no material was received by 11 August 2020. My associate informed Mr Simpson if he no longer wished to proceed with his application he still needed to notify chambers and complete a F50 Notice of Discontinuance.

[10] On 17 August 2020, an email was sent to Mr Simpson directing him to file and serve his material by no later than 5.00pm that day together with an explanation as to why he had not complied with the Commission’s Directions. The email also requested Mr Simpson file a Notice of Discontinuance if he no longer wished to proceed with his application.

[11] On 17 August 2020 at 5.42pm, my associate telephoned Mr Simpson and left a message on voicemail noting no material had been filed and no explanation had been received for his non-compliance with the Commission’s Directions. My associate advised the matter would be listed for a non-compliance hearing and an email and Notice of Listing would be sent out to the parties. My associate also asked Mr Simpson to call chambers.

[12] On 18 August 2020, an email was sent to the parties regarding Mr Simpson’s non-compliance with Directions and advising that the matter would be listed for a non-compliance hearing on 24 August 2020. A Notice of Listing was also sent to the parties confirming the same.

[13] On 24 August 2020, my associate called both parties before 9.00am and left a voicemail message advising the non-compliance hearing would now be listed at 3.00pm on that day instead of 2.00pm. An amended notice of listing confirming the rescheduled time was also sent to the parties.

[14] Mr Simpson did not attend the non-compliance hearing on 24 August 2020.

[15] Several attempts were made by my Chambers to contact Mr Simpson on his mobile phone however he did not answer any of the calls. A voicemail message was left on each occasion advising that the hearing was due to commence, and a request that Mr Simpson answer his phone or call Chambers. Mr Simpson failed to respond to those requests.

[16] The TWU made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Simpson’s failure to attend a hearing and file documents in the Commission in relation to his application. I waived compliance with the Fair Work Commission Rules 2013 and accepted the TWU’s oral application.

[17] Following the hearing, correspondence was sent to Mr Simpson’s nominated email account advising him of the TWU’s.399A application. Mr Simpson was directed to file submissions and other documentary material in respect of the s.399A application by 5.00pm on 26 August 2020. This correspondence stated that if the Commission did not receive a response, it was likely Mr Simpson’s application for relief from unfair dismissal would be dismissed without further notice.

[18] No material was received from Mr Simpson on 26 August 2020.

[19] 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.”

[20] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Simpson 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 attend the hearing, or his failure to comply with Directions of the Commission. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Simpson’s application. An order¹ giving effect to this decision will be issued today.

COMMISSIONER

Appearances:

J. Cooney with J Berger from the TWU

Hearing details:

2020.
Melbourne (by telephone):
August 24.

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