Kade Rowley v Vegco Pty Ltd

[2023] FWC 2418

[2023] FWC 2418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kade Rowley
v

Vegco Pty Ltd

(U2023/5705)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 SEPTEMBER 2023

Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A of the Fair Work Act 2009.

1. On 26 June 2023, Mr Kade Rowley (the Applicant) made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Vegco Pty Ltd (the Respondent).

1. In his Form F2 – Unfair Dismissal Application (Form F2), Mr Rowley nominated the “Advocacy Team Leader” of Employee Dismissals as his representative. Mr Rowley’s application was lodged with the Commission by Employee Dismissals and was signed by Miss Belinda Solomon, as paid agent for Mr Rowley for and on behalf of Employee Dismissals.

1. In the Form F2 a mobile phone number and an email address were provided for Mr Rowley, both of which have been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Mr Rowley received a response that it was “undeliverable”.

1. On 14 July 2023 a Notice of Listing for a telephone staff conciliation for 9:15am on 28 July 2023, was emailed to the parties. The Notice of Listing contained a link titled “tips for preparing for unfair dismissal conciliation”, and stated:

   “Any requests for adjournment of this listing must be made in writing and be based on substantial grounds.

   The parties should forward contact telephone numbers to [email protected] within 7 days of receipt of this notice.

   The parties will be contacted via the telephone numbers they have provided at the time listed above. The parties do not need to attend the Fair Work Commission.”

1. On 21 July 2023 Employee Dismissals emailed the Commission advising of the contact details to be used for the staff conciliation. Two attendees were listed, Miss Avanya Dehaloo of Employee Dismissals, for whom a direct telephone number was provided, and Mr Rowley, the telephone number for whom was the same as the telephone number provided in the Form F2.

1. On 28 July 2023, the staff conciliation could not proceed as Mr Rowley failed to attend. Two unanswered telephone calls, to Mr Rowley’s nominated telephone number, were made. Two voice messages were left and a filenote indicates an email was sent to Mr Rowley’s nominated email address, advising him that the Commission was trying to contact him for the staff conciliation which would remain open until 10am. At 3:16pm on 28 July 2023, the Commission sent an email to the parties notifying them that because the staff conciliation could not take place, the parties would be notified of a rescheduled staff conciliation, via email, in due course.

1. On 1 August 2023, the staff conciliation was relisted for the 24 August 2023, with the standard Notice of Listing, as described above, sent to the parties.

1. On 17 August 2023, Employee Dismissals emailed the Commission advising of the contact details to be used for the staff conciliation. Two attendees were listed, Miss Belinda Solomon of Employee Dismissals, for whom a direct telephone number was provided. The telephone number provided for Mr Rowley was the same as the telephone number provided in the Form F2.

1. I observe that on 21 August 2023, Mr Rowley was copied into an email sent to Employee Dismissals which confirmed the date and time for the staff conciliation.

1. At around 8:50am on 24 August 2023, the parties’ representatives were advised, by telephone call, that the staff conciliation would be delayed by 30 minutes. An amended Notice of Listing, with a start time of 11:45am, was sent to the parties. Three unanswered telephone calls were made to Mr Rowley’s nominated telephone number at 11:14am, 11:19am and 11:31am. As it appeared that Mr Rowley’s telephone was turned off, three voicemail messages were left requesting Mr Rowley contact the Commission. The staff conciliation could not take place because Mr Rowley did not attend.

1. The matter was allocated to me on 25 August 2023. I caused Directions and a Notice of Listing for a telephone Mention, to be held at 3:15pm on 29 August 2023, to be sent to the parties. My Directions, dated 25 August 2023, outlined the timeline for the filing and service of material ahead of an Arbitration Conference/Hearing. In particular, Mr Rowley was directed to file and serve his Outline of Argument, Statement(s) of Evidence and Document List, by no later than 3.00pm on Friday, 15 September 2023.

1. On 25 August 2023, Employee Dismissals emailed the Commission advising of the contact details to be used for the staff conciliation. Two attendees were listed, Miss Belinda Solomon of Employee Dismissals, for whom a direct telephone was provided, and Mr Rowley. The telephone number provided for Mr Rowley was consistent with the number provided in the Form F2.

1. On 28 August 2023, Mr Rowley emailed my Chambers with his contact telephone number, which was different to the telephone phone number nominated on his Form F2.

1. Mr Rowley subsequently attended the Mention on 29 August 2023. I discussed my Directions, dated 25 August 2023, and the requirement for the parties to prepare, file and serve their material. I emphasised the importance of the timetable and outlined the possible implications if they failed to file and serve their material in compliance with it. Mr Rowley confirmed his understanding of the Directions.

1. On 31 August 2023, Employee Dismissals filed and served a Form F54 – Notice of Representative Ceasing to Act (Form F54). On 1 September 2023, my Chambers sent an email to the parties acknowledge receipt of the Form F54, and notifying the parties that my Directions, of 25 August 2023, remained in place and that it would now be up to Mr Rowley to file his material in compliance with the Directions. It was highlighted to Mr Rowley that the Directions contained hyperlinks to Fair Work Commission template documents which would assist him preparing his material. The parties were also reminded that the conference/hearing would be at 10am on 23 October 2023.

1. Mr Rowley did not file and serve his material on 15 September 2023, as had been directed. As such, a Notice of Listing was sent to the parties on 18 September 2023 scheduling a Non-compliance telephone hearing at 4:00pm on 19 September 2023. The Notice of Listing was preceded by an email to the parties, confirming the details of the Non-compliance hearing and requesting that that they provide their best telephone contact details by no later than 1:00pm on 19 September 2023. An SMS notification was also sent to telephone number listed in the Form F2 for Mr Rowley, at 1:10pm on 18 September 2023.

1. At 2:32pm on 19 September 2023, the Respondent filed and served an application to dismiss an application for non-compliance pursuant to s.399A of the Act.

1. The Non-compliance hearing proceeded before me on 19 September 2023. Mr Rowley could not be contacted, despite three attempts to call him on the mobile telephone number listed in the Form F2, and three further attempts to call him on the mobile phone number Mr Rowley had nominated for use at the Mention on 29 August 2023. On each occasion a voicemail message was left notifying Mr Rowley of the Non-compliance hearing. The Non-compliance hearing proceeded in Mr Rowley’s absence, as I was satisfied he had been placed on notice that it would be occurring and had provided no indication that he would not be able to attend. The Respondent pressed its s.399A application.

1. Immediately following the Non-compliance hearing, correspondence was sent to Mr Rowley’s nominated email address advising him of the Respondent’s s.399A application. Mr Rowley was directed to file submissions by no later than 12.00pm on 26 September 2023 explaining why he had neither complied with the Directions to file material, nor attended the Non-compliance hearing and, before that, the two previously listed staff conciliations. This correspondence outlined that if the Commission did not receive a response, the s.399A application would be determined based on the material currently before the Commission and Mr Rowley was cautioned that in the absence of a response, his unfair dismissal application would likely be dismissed without further notice.

1. As at 12:00pm on 26 September 2023, Mr Rowley had not filed any material with the Commission in response to the s.399A application. This failure to do so is in addition to Mr Rowley’s continued failure to file material for the Arbitration Conference/Hearing pursuant to my Directions dated 25 August 2023.

1. 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.

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As Mr Rowley did not file any material in opposition to the Respondent’s s.399A application, I will determine the s.399A application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. I confirm the Commission has at all times used the telephone numbers and email address nominated by Mr Rowley in its attempts to contact him. Mr Rowley has not responded to such attempts. Nonetheless, Mr Rowley has had the opportunity to engage with the Commission’s processes and prosecute his case. However, since filing his unfair dismissal application on 30 June 2023, Mr Rowley has failed to progress the prosecution of his case and has provided no explanation to the Commission for either his continued failure to comply with the Directions, requiring him to file and serve material, or his failure to attend the Non-compliance hearing on 19 September 2023.

1. In all the circumstances of this matter, I am satisfied that I should exercise my discretion under s.399A to dismiss Mr Rowley’s unfair dismissal application. I am satisfied that Mr Rowley unreasonably failed to attend the Non-compliance hearing on 19 September 2023. Mr Rowley was advised of the Non-compliance hearing in advance via contact details he had provided to the Commission and made no response to the Commission’s attempts to contact him before, at the time of or after it. This conduct from Mr Rowley perpetuated a pattern of failing to attend Commission listings. Further, I am satisfied Mr Rowley has unreasonably failed to comply with both my direction to respond to the s.399A application and my direction that he file and serve her material for the Arbitration Conference/Hearing by 3.00pm on 15 September 2023. The Commission has not been made aware of any countervailing circumstances impacting on Mr Rowley’s capacity to respond to the Commission’s attempts to contact him since 18 September 2023 or to attend proceedings before the Commission or file and serve material. This pattern of inaction persuades me that this is a case in which it is appropriate to exercise the discretionary power in s.399A.

1. My determination to exercise my discretion to dismiss Mr Rowley’s unfair dismissal application pursuant to s.399A brings it to an end. An Order[1] to this effect will be issued with this Decision.

DEPUTY PRESIDENT

[1] PR766392.

Printed by authority of the Commonwealth Government Printer

<PR766390>