Kevin Lovell v Complete Tyre Solutions

[2019] FWC 8700

[2019] FWC 8700

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Lovell
v
Complete Tyre Solutions
(U2019/11786)

COMMISSIONER WILLIAMS PERTH, 23 DECEMBER 2019

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Mr Kevin Lovell (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Complete Tyre Solutions.

[2] The application was made on 21 October 2019. The application completed by Mr Lovell states he began working for the Respondent on 25 March 2019, was notified of his dismissal on 30 September 2019 and the dismissal took effect on 1 October 2019.

[3] The remedy Mr Lovell states he is seeking by lodging this application is:

“Complete Tyre Solutions to reimburse all arrears plus a subsidy due to being unemployed and facing hardship, plus the racial discrimination from a CTS manager.”

[4] Question 3.1 on the application asks what the reasons were for dismissal if any given by the employer and question 3.2 on the application asks an applicant “Why was the dismissal unfair?” Mr Lovell on his application did not answer either of these questions.

[5] Mr Lovell attached five documents to his application which in chronological order are:

1. An email dated 13 September 2019, to Mr Lovell from the Branch Manager, Karratha and Newman attaching a change of employment conditions form which he says needs to be signed and returned and in which the Manager tells Mr Lovell to keep up the great work and thanks him for his help.

2. A change of employment conditions form which identifies Mr Lovell’s new status as a tyre fitter at Newman on a permanent flat rate of $35.00 per hour, signed by the managing director on 13 September 2019. The form provides for it to be signed by the employee but Mr Lovell has not signed the form.

3. An email dated 1 October 2019, from Mr Lovell to Mr Cometti and Mr Armstrong which reads as follows:

“It is now 6 weeks since I first asked the question about my missing pay.

I would like to know what is being done to resolve the problem and when it is expected to be resolved.

I would also like to only communicate via email on the subject so I can keep these conversations for my personal record.

Also can you please let me know who’s in charge of hr now since Michelle has left as I wish to make a formal complaint about racist remarks Sam Armstrong made over the phone to me on Sunday, 29 August.”

4. An email dated 1 October 2019, from Mr Cometti to Mr Lovell referring to an attached notice of termination of employment and detailing arrangements to ensure Mr Lovell’s personal property including any motor-vehicle in Port Hedland are removed from the Respondent’s site by 7 October 2019.

5. A letter dated 30 September 2019, from Mr Cometti the Managing Director addressed to Mr Lovell headed “Termination of Your Employment”. The letter begins by saying “I am writing to inform you that after a review of our Newman operations that your employment with Complete Tyre Solutions is being terminated.” The balance of the letter refers to administrative matters.

[6] The day after the application was made, 22 October 2019, the Commission’s staff wrote to Mr Lovell pointing out the application was incomplete because he had not given answers to questions 3.1 and 3.2 and explaining these needed to be completed as soon as possible.

[7] The same day Mr Lovell emailed what he referred to as “revised paperwork” which were the same documents listed above with numbers hand written on them which appear to indicate that documents 1, 4 and 5 above are the answer to question 3.1 and documents 1, 2 and 3 are the answer to question 3.2.

[8] The application was listed for a conciliation conference with a Fair Work Commission conciliator. A file note however explains that Mr Cometti for the Respondent advised he was unwilling to participate.

[9] Consequently on 18 November 2019, the Commission’s conciliator emailed to the parties a letter stating that the matter had been referred to a Member of the Commission and suggesting they familiarise themselves with the requirements of a formal proceeding and providing a relevant link to the Commission’s website where there are extensive materials explaining how the Commission conducts unfair dismissal remedy application proceedings and explaining what is required of the parties. The letter also provided a detailed explanation of what both an “outline of written submissions” and a “witness statement” are and what they would usually be expected to contain.

[10] On 29 November 2019, the Commission sent by post and email to Mr Lovell and the Respondent a Notice of Listing advising a hearing would be held on Monday, 23 December 2019 and attaching directions which amongst other things required the Applicant to file with the Commission and serve on the Respondent a written statement of evidence for each witness to be called, including the Applicant, and an outline of submissions by Monday, 9 December 2019.

[11] Mr Lovell did not file with the Commission any materials by 9 December 2019, nor contact the Commission prior to this date.

[12] Mr Lovell failed to comply with a direction of the Commission relating to the application.

[13] Having received nothing from Mr Lovell nor heard from him, on Thursday, 12 December 2019 the Commission wrote another letter to him referring to the 29 November 2019 correspondence and directions and noting his failure to comply with those and including a further direction to file in the Commission and serve his materials on the Respondent, being a written statement of his evidence and a written statement of evidence for each supporting witness if any and an outline of his submissions by Thursday, 19 December 2019.

[14] The last paragraph of the letter advised that if Mr Lovell did not comply with this further direction his repeated non-compliance would mean his application would be dismissed, referencing section 587 of the Act, and the matter closed.

[15] On 18 December 2019, Mr Lovell emailed to the Commission copies of the same five documents listed above that he has previously provided and one new document.

[16] The new document is an email reply from Mr Cometti to Mr Lovell’s email numbered 3 above. In response to Mr Lovells email, the same day Mr Cometti replies as follows:

“Kevin,

The process is lengthy in nature.

I am sympathise with you in regards to the time taken since you raised this mid-September however the reconciliation process is lengthy. It is our intention to have this process concluded by mid-month.

I will also like to draw your attention to the termination advise that was sent to you earlier today.  It is expected that you will work today to fulfil your notice period obligations.”

[17] Self evidently notwithstanding the Commission’s further direction Mr Lovell has not filed with the Commission any witness statements nor an outline of submissions.

[18] Mr Lovell has again failed to comply with a direction of the Commission relating to the application.

[19] As at the date of this decision Mr Lovell has not filed any further materials nor otherwise contacted the Commission.

The legislation

[20] Section 577 obliges the Fair Work Commission to perform its functions and exercise its powers in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[21] Further section 578 relevantly requires that in performing functions or exercising powers in relation to a matter the Fair Work Commission must take into account the objects of the relevant part of the Act.

[22] A section 394 application falls under Part 3-2 unfair dismissal of the Act.

[23] The objects of Part 3- 2 unfair dismissal are prescribed in section 381. These objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

[24] Section 587 (3) empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

[25] A Respondent is entitled to be advised of what an Applicant’s contentions are.

[26] The Commissions Form 3 Employer response to unfair dismissal application asks at question 3.2:

“What is the employer’s response to the Applicant’s contentions? Using numbered paragraphs, set out the employer’s response to the Applicant’s contentions as to why the dismissal was unfair.”

[27] The Applicant has at no point explained with particularity why he believes his dismissal was unfair.

[28] The Applicant was required to explain why he believes his dismissal was unfair in answer to that question on the application form. He was again required to do this when he was advised his application was incomplete.

[29] The Applicant was directed by the Commission on two occasions to provide a statement of evidence and an outline of submissions in support of his contention that his dismissal was unfair.

[30] The Applicant has had these four opportunities over two months to particularise why he believes his dismissal was unfair but has not done so.

[31] In this case the Applicant has repeatedly failed to comply with the Commission’s directions and was on notice after the first non-compliance that further non-compliance would be grounds for the application to be dismissed.

[32] The Applicant in the circumstances here has been given a fair go.

[33] The Respondent employer is also entitled to a fair go including having the claim made against them particularised to allow them to properly respond. The Respondent has been denied this.

[34] Consequently, my decision is that this application for an unfair dismissal remedy will now dismissed on the initiative of the Fair Work Commission under section 587(3) of the Act.

[35] An order to this effect will be issued in conjunction with this decision.

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