Jonathon Steele v Barossa Plumbing & Gasfitting

[2019] FWC 3224

[2019] FWC 3224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathon Steele
v
Barossa Plumbing & Gasfitting
(U2019/673)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 MAY 2019

Application for an unfair dismissal remedy.

[1] On 23 January 2019, Mr Jonathon Steele made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Steele said his employment had been terminated by Barossa Plumbing & Gasfitting (BPG) on 21 January 2019.

[2] The matter was listed for conciliation on 25 February 2019, however it could not proceed because Mr Steele could not be contacted. On the same day, the Commission sent email correspondence to the parties advising that if a second conciliation date was sought, they should email the request within two working days. Mr Steele did not respond to the Commission’s email.

[3] On 19 March 2019, a voicemail message was left for Mr Steele regarding a second conciliation, however there was no response received.

[4] On 5 April 2019, a Notice of Listing was sent to the parties scheduling the matter for Arbitration Conference/Hearing on 3-4 June 2019. Directions were also issued for the filing of material. Mr Steele was directed to file his material by no later than noon on 23 April 2019 and BPG was to file its material by no later than noon on 13 May 2019.

[5] No material was received from Mr Steele by noon on 23 April 2019.

[6] On 24 April 2019, the Commission attempted to contact Mr Steele via telephone regarding his overdue material. A voicemail message was left seeking his return call. Email correspondence was then sent to Mr Steele advising that if no extension request or submissions were received by 10.00am on 26 April 2019, the matter would be listed for a non-compliance hearing on 30 April 2019.

[7] On 26 April 2019, a Notice of Listing was sent to the parties scheduling the matter for a non-compliance hearing on 30 April 2019.

[8] The non-compliance hearing proceeded before Commissioner Bissett on 30 April 2019. Mr Steele could not be contacted. BPG made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Steele’s failure to comply with the direction of the Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted BPG’s oral application.

[9] Following the non-compliance hearing, correspondence was sent to Mr Steele’s nominated email and postal addresses advising him of BPG’s s.399A application. Mr Steele was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4.00pm on 7 May 2019. The correspondence also noted that if the Commission did not receive a response, Mr Steele’s application for relief from unfair dismissal may be dismissed. A review of the Australia Post tracking ID indicates the letter was successfully delivered on 2 May 2019.

[10] To date, Mr Steele has not filed any material with the Commission.

[11] 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.

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

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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing his application, Mr Steele has failed to actively prosecute his case and has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the non-compliance hearing on 30 April 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Steele’s application. This ends his unfair dismissal application.

[15] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR708165>