Justin Baldwin v Suncorp Staff Pty Ltd T/A Suncorp

[2019] FWC 505

[2019] FWC 505

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Baldwin
v
Suncorp Staff Pty Ltd T/A Suncorp
(U2018/11696)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 13 November 2018, Mr Justin Baldwin 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 Baldwin said his employment had been terminated by Suncorp Staff Pty Ltd T/A Suncorp (Suncorp) on 23 October 2018, and that it took effect on the same day.

[2] A conciliation was held on 6 December 2018 but did not resolve. The matter was therefore scheduled for an Arbitration Conference/Hearing on 13-15 February 2019 and directions were sent to the parties on 7 December 2018, which required Mr Baldwin to file an Outline of Argument, Statement(s) of Evidence and a Document List by no later than noon on 3 January 2019.

[3] As no material was received from Mr Baldwin on 3 January 2019, the Commission attempted to telephone him on 4 January 2019 and a voicemail message was left requesting his urgent return call.

[4] The Commission attempted to telephone Mr Baldwin again on 7 January 2019 in relation to his overdue material but could not reach him, so a voicemail message was left to request that he return the call urgently.

[5] On 8 January 2019, the Commission emailed Mr Baldwin warning that if he did not make contact by noon the following day, the matter would be listed for a non-compliance hearing.

[6] As no response was received from Mr Baldwin, a Notice of Listing was sent to the parties on the evening of 9 January 2019, scheduling the matter for a non-compliance hearing at 1:00pm AEST on 11 January 2019. A further attempt to telephone Mr Baldwin was made on the morning of 10 January 2019 and a voicemail message was left to advise him of the non-compliance hearing listed for the following day.

[7] The non-compliance hearing proceeded before Commissioner Wilson on 11 January 2019. Mr Baldwin could not be contacted. Suncorp made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Baldwin’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted Suncorp’s oral application.

[8] Following the non-compliance hearing, correspondence was sent to Mr Baldwin’s nominated email and postal addresses advising him of Suncorp’s s.399A application. The postal correspondence was sent via express post. Mr Baldwin was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 18 January 2019. The correspondence also noted that if the Commission did not receive a response, Mr Baldwin’s application for relief from unfair dismissal would likely be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Mr Baldwin’s nominated postal address on 15 January 2019.

[9] On 21 January 2019, as no response was received from Mr Baldwin, a Notice of Listing was sent to the parties vacating the directions and cancelling the Arbitration Conference/Hearing.

[10] To date, Mr Baldwin 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 Baldwin 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. Mr Baldwin has failed to respond to the numerous attempts made by the Commission to contact him. Apart from initially filing his application and attending the conciliation, Mr Baldwin has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with the Commission’s 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 Baldwin’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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