Joshua Burt v Hill Street Grocer

[2018] FWC 4621

[2018] FWC 4621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Burt
v
Hill Street Grocer
(U2018/5089)

COMMISSIONER BISSETT MELBOURNE, 7 AUGUST 2018

Application for an unfair dismissal remedy.

[1] On 16 May 2018, Mr Joshua Burt 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 Burt said he was notified of his dismissal by Hill Street Grocer (Hill Street) on 16 May 2018, and that it took effect on the same day.

[2] The matter was listed for conciliation on 14 June 2018 but was later cancelled by the Commission due to operational reasons. A Notice of Listing was issued to the parties on the same day to confirm the rescheduled conciliation details for 26 June 2018. This was followed by a SMS text message sent to the parties on 25 June 2018 reminding them of the conciliation scheduled for the following day.

[3] Despite five attempts to telephone Mr Burt on 26 June 2018, the conciliation could not proceed as he could not be contacted. This was followed by correspondence emailed to the parties advising that if no request for a further conciliation was received within the next two days, the matter would be referred for hearing.

[4] On 27 June 2018, Hill Street sent an email to the Commission advising that it was prepared to attend a further conciliation. This email was forwarded to Mr Burt on the same day, and also requested that he contact the Commission to advise how he wished to proceed with the application. Later that day, an attempt to telephone Mr Burt was made but this was unsuccessful and a voicemail message was left seeking a return call.

[5] On 29 June 2018, the Commission sent correspondence to the parties, via email, advising that the application had been referred for arbitration before a Member of the Commission.

[6] On 3 July 2018, a Notice of Listing was sent to the parties listing the matter for a Jurisdiction (Minimum Employment Period – Other Business) Conference/Hearing on 17 August 2018. Hill Street was directed to file its material by no later than noon on 13 July 2018 and Mr Burt was directed to file his reply material by no later than noon on 23 July 2018.

[7] On 11 July 2018, Hill Street filed its material.

[8] On 23 July 2018, the Commission attempted to telephone Mr Burt in relation to his overdue material. This was unsuccessful and a voicemail was left, requesting a return call.

[9] A further attempt to telephone Mr Burt on 25 July 2018 was unsuccessful. A voicemail was left advising him that if the Commission did not receive his material or a request for an extension to file his material, then the matter would proceed to a non-compliance hearing. An email was sent to Mr Burt later the same day to confirm the details conveyed in the voicemail and further instructing that the information was to be received by 12.00 pm the next day.

[10] As no correspondence was received from Mr Burt by 12.00 pm on 26 July 2018, a Notice of Listing was issued to parties scheduling the non-compliance hearing for 27 July 2018.

[11] The non-compliance hearing proceeded before Deputy President Colman on 27 July 2018. The Commission’s first attempt to contact Mr Burt was successful, however the call terminated shortly afterwards. Three attempts were made to reconnect Mr Burt but these were unsuccessful as he did not answer. The non-compliance hearing continued to proceed without Mr Burt’s attendance and Hill Street made an oral application pursuant to s.399A of the Act that the matter be dismissed due to his failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Hill Street’s oral application.

[12] Following the non-compliance hearing, correspondence was sent via email to Mr Burt advising him of Hill Street’s s.399A application. Mr Burt was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by close of business on 3 August 2018.

[13] To date, Mr Burt has not filed any material with the Commission.

[14] 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.’

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

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

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Burt has failed to respond to numerous attempts made by the Commission to contact him. Apart from initially filing his application, Mr Burt has shown no willingness to prosecute his matter and has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Burt’s application.

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

COMMISSIONER

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