Kody Lancaster v Pickles Auctions Pty Ltd

[2011] FWA 1797

[2011] FWA 1797

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kody Lancaster
v
Pickles Auctions Pty Ltd
(U2010/13961)

COMMISSIONER BLAIR MELBOURNE, 25 MARCH 2011

S.394 - application for unfair dismissal remedy.

[1] This decision arises out of an application made to Fair Work Australia (the Tribunal) under s.394 of the Fair Work Act 2009 (the Act). The application was made by Mr Kody Lancaster (the Applicant) for unfair dismissal remedy against Pickles Auctions (the Respondent).

[2] The application was lodged on 9 November 2010. A conciliation conference was scheduled to be conducted by telephone at 9.15am, 26 November 2010. The Applicant was not available when the telephone call was made to conduct the telephone conciliation conference. Several attempts were made by the conciliator to contact Mr Lancaster that day in order to proceed with the telephone conciliation.

[3] There was a further listing for conference/hearing on 7 March 2011 and Directions were given to the parties. Part of the Directions indicated to the Applicant that if he didn’t reply by 10 January 2011, in terms of sending in his Outline of Submissions, Witness Statement and any other documents, that there would be a further hearing but it would be for non-compliance. The Applicant failed to submit those documents and serve them upon the Respondent.

[4] The matter was listed before Her Honour, SDP Acton, on 20 January 2011 for a hearing in relation to non-compliance. At that hearing, Mr Saccoccio appeared for the Respondent. At PN7 of the transcript of that hearing Mr Saccoccio stated as follows:

“This matter has been listed for today. It is my understanding, I spoke to Ms Sarah Hatfield from the Fair Work Dismissals team yesterday and she informed me that she has sent the notice of listing for today’s hearing by registered post, also tried to contact him by telephone and hasn’t heard a thing in correspondence from him at all and neither have the Respondent. So we seek respectfully, I submit, that the matter be dismissed under section 587 of the Fair Work Act at Fair Work Australia’s own initiative.”

[5] Her Honour then gave a decision at PN8 of the transcript of that hearing, as follows:

“What I’m going to do is this. I relieve the Respondent of any requirement to file material or to attend the proceeding on 7 March. In the event that the Applicant doesn’t attend the proceeding on 7 March in all probability the matter will be struck out. If the Applicant does attend then the Respondent will be given the opportunity to prepare their material and witness statements without prejudice to their non-attendance and non-compliance at that point.”

[6] The matter was listed before the Tribunal, as currently constituted for conference/hearing on 7 March 2011 at 10.00am to determine whether or not the matter should be struck out under s,587 of the Act.

“Section 587(3) of the Act states as follows:

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] The Tribunal commenced proceedings at 10.03am as no-one was present. The Applicant then presented himself. The Tribunal sought an explanation as to why, firstly, the Applicant had not made himself available for the telephone conciliation and, secondly, why the Applicant had not complied with the Directions issued by the Tribunal.

[8] In answer to the first question, the Applicant responded at PN8 of the transcript of that hearing, as follows:

“Well because the reason I didn’t, you know, have the phone call is I called in on the Friday to tell me that I had a phone call the next Tuesday and I was overseas. I’d already booked in to go home. So I told him that and then he just, like, virtually said then that I have to - that’s my phone call and they can’t change it or anything. So that’s why we did that, and then I couldn’t pay my phone bill so then my phone got disconnected and then my letters got misplaced at my house, so I couldn’t get any of them until later. And then when I found that I even rang them straight away, so I couldn’t really do much about any of that.”

[9] In answer to the second question, an exchange occurred between the Applicant and the Tribunal at PN10 of the transcript of that hearing, as follows:

“MR LANCASTER: Because the - I got called by the Constable in charge of the case and she said it’s all getting wiped, so there’s no evidence that I need to provide except myself.

THE COMMISSIONER: That has got nothing to do with us.

MR LANCASTER: Yes, but they’re trying to say that I’m going to get fired with evidence that’s not in- won’t get me charged with ...

THE COMMISSIONER: But that doesn’t make any difference. You were provided with Directions that you had to comply with. It doesn’t matter what the police do. You lodged a claim alleging unfair dismissal. That matter stands on its own. So why didn’t you comply with the Directions?

MR LANCASTER: Well I just thought I did comply with the Directions.

THE COMMISSIONER: Well you didn’t.

MR LANCASTER: Well then I didn’t.”

[10] Having considered the explanation of the Applicant, the Tribunal has come to the conclusion that the Applicant’s explanation is not acceptable.

[11] Firstly, the Applicant would have had at least two weeks’ notice that a telephone conciliation was to occur on 26 November 2010. Therefore, he would have had ample opportunity to if he were to be overseas to make alternative arrangements in order for that conciliation to be adjourned to another date or to be available by telephone.

[12] Secondly, in regard to not complying with the Directions, even if the Applicant were under the impression that because the police were not proceeding with the charges he made no attempt to contact the Tribunal as to the standing of his application and what effect, if any, the decision by the police would have on his claim.

[13] Having considered the Applicant’s position, the Tribunal would, under s.587(3) of the Act, dismiss the Applicant’s application on the basis of non-compliance with the Directions issued by the Tribunal and also failure to make himself available for the original telephone conciliation scheduled for 26 November 2010.

[14] Therefore the matter is dismissed and the file is now closed.

COMMISSIONER

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