Justin Collins v Alclad Architectural

[2018] FWC 6746

[2018] FWC 6746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Collins
v
Alclad Architectural
(U2018/8593)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 24 August 2018, Mr Justin Collins 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 Collins said his employment had been terminated by Alclad Architectural on 3 August 2018.

[2] On 24 September 2018, Alclad Architectural’s representative advised the Commission that it declined to participate in the conciliation scheduled for 4 October 2018 and wished for the matter to be listed for a jurisdictional hearing, as it submitted Mr Collins’ application was filed out of time. Alclad Architectural said Mr Collins’ employment was terminated on 2 August 2018 and therefore the application was filed one day late.

[3] Also on 24 September 2018, the Commission attempted to telephone Mr Collins in relation to the matter proceeding to hearing, however there was no answer.

[4] On 27 September 2018, a Notice of Listing was sent to the parties advising the Extension of Time Conference/Hearing details and also the directions to file material. Mr Collins was directed to file his material by no later than noon on 5 October 2018. Alclad Architectural was directed to file its material by no later than noon on 12 October 2018. The Notice of Listing was sent to Mr Collins via email and post.

[5] Later in the afternoon on 27 September 2018, there was a telephone discussion between Mr Collins and a member of the Commission’s staff where it was discussed that Mr Collins may be eligible to obtain free legal advice, information of which was contained in the Notice of Listing. Mr Collins also queried the out of time objection which had been raised and it was advised that a jurisdictional hearing was required to determine the issue.

[6] On 8 October 2018, as no material had been filed, the Commission left two voicemail messages with Mr Collins in relation to his outstanding material. Mr Collins returned the Commission’s call and indicated he may not wish to continue with the matter, however he wanted to speak with someone prior to withdrawing his application. Mr Collins was advised if no advice was received from him by 10 October 2018, the matter would be listed for a non-compliance hearing on 12 October 2018.

[7] On 9 October 2018, two voicemail messages were left for Mr Collins seeking his urgent return call. An email was then sent to him noting that no material had been received and if he did not contact the Commission by 9.00am on 10 October 2018, the matter would be listed for a non-compliance hearing on 12 October 2018.

[8] On 10 October 2018, a further voicemail message was left for Mr Collins. A Notice of Listing was then sent to the parties confirming the scheduling of a non-compliance hearing on 12 October 2018.

[9] The non-compliance hearing proceeded before me on 12 October 2018. Mr Collins could not be contacted. Alclad Architectural made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Collins’ failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Alclad Architectural’s oral application.

[10] Following the non-compliance hearing, correspondence was sent to Mr Collins’ nominated email and postal addresses advising him of Alclad Architectural’s s.399A application. Mr Collins was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 19 October 2018. This correspondence stated that if the Commission did not receive a response, Mr Collins’ application for relief from unfair dismissal would be dismissed. The letter was sent by express post which was confirmed to have been delivered to Mr Collins on 16 October 2018.

[11] To date, Mr Collins has not filed any material with the Commission.

[12] 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.

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

[14] As Mr Collins 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. Mr Collins has failed to respond to numerous attempts made by the Commission to contact him. Mr Collins has shown no willingness to prosecute his case 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 Collins’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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