Kyle Phillips v Aluminium Balustrades

[2017] FWC 286

[2017] FWC 286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kyle Phillips
v
Aluminium Balustrades
(U2016/10848)

DEPUTY PRESIDENT ASBURY BRISBANE, 13 JANUARY 2017

Application for unfair dismissal remedy - Application under s.399A for the Commission to dismiss application for failure by applicant to attend a conference conducted by the FWC and failure to comply with a direction of the FWC relating to the application – Applicant granted – Unfair dismissal application of applicant dismissed.

[1] This decision concerns an application by Mr Kyle Phillips (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Aluminium Balustrades (the Respondent). The application was made on 31 August 2016.

[2] The matter was listed for conciliation on 18 October 2016. The Applicant was unable to be contacted at that time and did not answer his telephone. Subsequent correspondence with the Applicant indicated he was incapacitated at the time of the scheduled conciliation and requested a further conciliation conference. The Respondent agreed to participate in a second conciliation conference and it was scheduled for 14 November 2016 commencing at 11.15 am. There is a note on the file indicating that the Applicant’s telephone number and email address for contact were confirmed with him during a telephone conversation with a member of the unfair dismissals team on 24 October 2016.

[3] On 14 November 2016, the Conciliator was again unable to make contact with the Applicant. A file note made by the Conciliator indicates that on that date between 11.15 am and 11.30 am, five attempts were made to contact the Applicant who did not answer his telephone. The Conciliator subsequently corresponded with the parties advising that the application had been referred for arbitration before a member of the Commission.

[4] On 15 November 2016, despite failing to attend two conciliation conferences, the Applicant was able to send an email to the Commission querying the lack of progress with his application and stating that “it’d be much fucking appreciated if we could get this whole thing over and done with”. Directions were issued on 16 November requiring the Applicant to lodge with the Commission an outline of submissions and any witness statements and other documentary material the Applicant intended to rely on in support of his application by no later than 5 December. The Applicant failed to lodge material by the due date and the matter was listed for a Non-Compliance Hearing before Deputy President Gooley on 12 December.

[5] At the Non-Compliance Hearing, the Deputy President advised the Applicant that if he wished to pursue his application, he would need to file his material and was granted a one week extension to file his material. The Applicant was further advised that if he did not lodge his material the Respondent may apply under s. 399A of the Act seeking submissions as to why the Commission should not dismiss his application. The Applicant was also sent electronic links to sample documentation to assist him to file and serve material in support of his application. The Respondent was granted an extension of time in which to file and serve its material until 13 January 2017. The matter was listed for hearing on 16 January 2017.

[6] On 15 December the Applicant filed an outline of submissions. The Applicant did not file a witness statement. The material set out in the outline filed by the Applicant was virtually identical to the material in his Form F2 Application. It was sent under cover of an email stating that this is all the material he would be filing as he did not deem that further material was necessary. Notwithstanding the views of the Applicant, the material he filed does not address matters that are required to be addressed in an unfair dismissal application and does not raise issues with which the Respondent could engage. It is also the case that on the facts stated by the Applicant it is unlikely that his unfair dismissal application would succeed.

[7] The matter was allocated to me on 21 December. After reviewing the material on the file I determined to conduct a Mention/Conciliation by telephone to determine whether the matter could be resolved by agreement and to address the deficiencies in the Applicant’s filed material. A notice of listing for 5 January 2017 was forwarded to the parties on 22 December 2016. The notice of listing was sent directly to the Applicant via two email addresses including one that he confirmed in communications with the Commission and used on the last occasion he had sent an email to the Commission.

[8] At the Mention/Conciliation on 5 January 2017 my Associate made a number of attempts to make contact with the Applicant who answered his telephone on the fourth attempt. The Applicant stated to my Associate that he was busy and requested that he be called back in a couple of hours. My Associate indicated to the Applicant that a Notice of Listing was issued on 22 December 2016 and sent to the two email addresses provided by the Applicant. The Applicant stated that he had not received the Notice of Listing.

[9] On my instructions, my Associate informed the Applicant that if he failed to participate in the Mention/Conciliation his application may be dismissed. The Applicant informed my Associate that he would attempt to participate and the conference commenced. Shortly after the commencement of the Mention/Conciliation the Applicant informed me that he was busy and had to go. I informed the Applicant that should he refuse to participate and proceed to disconnect from the telephone conference, his application may be dismissed. The Applicant disconnected his telephone.

[10] After the Applicant disconnected from the Mention/Conciliation the Respondent raised its concerns about the conduct of the Applicant in failing to properly pursue his application and asserted that the Respondent’s time was being wasted by frequent attempts to engage with the Applicant. I asked the Respondent’s representative Ms Clifford whether the Respondent would be seeking to have the application dismissed pursuant to s.399A of the Act and the Respondent confirmed that this was its intention. I then requested that my Associate provide the Respondent with the relevant Form. In the circumstances I also vacated the Directions requiring the Respondent to file its material by 13 January 2017.
[11] On 6 January 2017, the Respondent made an application under s. 399A(1) of the Act for the application to be dismissed on the ground that the Applicant had unreasonably failed to attend a conference conducted by the Commission in relation to the application. The Application was served on the Applicant by my Associate with a covering email informing him that he was directed to file a response to the application by 12.00 midday on Friday 13 January 2017 setting out reasons why his application for an unfair dismissal remedy should not be dismissed and indicating that failure to respond would result in his application being dismissed.

[12] The Applicant responded by email at 4.16 am on Friday 13 January 2017 stating as follows:

“It shouldn’t be dismissed because it hasn’t settled yet.
I’ve had stuff going on for the past few months and I still continue to have things happening, so sorry if I couldn’t get to the phone when you’ve called me.”

Legislation

[13] 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

[14] The Commission also has general powers to dismiss an application pursuant to s.587 of the Act which provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Conclusions

[15] I am satisfied that the Applicant has failed to comply with Directions of the Commission relating to his application. The Applicant has provided no reasonable explanation for continued failure to comply with Directions of the Commission, despite being given every opportunity to do so.

[16] I do not accept that the Applicant did not receive the Notice of Listing for the Mention/Conciliation on 5 January 2017. The Notice was sent to two email addresses including one which the Applicant used as recently as 4.16 am on 13 January 2017 when he responded to the s. 399A application made by the Respondent. In that response the Applicant does not assert that he did not receive the Notice of Listing but simply states that he could not get to the phone at the required time.

[17] The Applicant’s refusal to participate in the Mention/Conciliation is unreasonable, taking into account the notice that the Applicant was given of the conference and the opportunity that he had to make any adjournment request. The purpose of the Mention/Conciliation was to address deficiencies in the material filed by the Applicant, so that the Respondent could properly respond to the application and to explain to the Applicant the implications for him of some of the statements he made in that material.

[18] The refusal of the Applicant to participate in the Mention/Conciliation was exacerbated by the fact that he has been warned on previous occasions of the implications of failing to comply with Directions of the Commission and by the fact that when I attempted to again explain this to him, the Applicant hung up on me. In my view, the conduct of the Applicant triggers the discretion in s. 399A of the Act and I am satisfied that discretion to dismiss the application should be exercised.

[19] The Commission and the Respondent have expended considerable time and effort on this matter and while I am not unsympathetic to the obvious issues that the Applicant has, enough is enough. The application and the material filed by the Applicant in support of the Application do not properly disclose the case that the Respondent is required to answer and it is not reasonable to conduct a hearing and to require the Respondent to attend, simply for the purpose of giving the Applicant a further opportunity to put his case, in circumstances where he has failed to attend three conferences and has not availed himself of an extension of time in which to file material that is relevant to an unfair dismissal application.

[20] I am also of the view that the application as pleaded and the material filed in support of it discloses that there is no reasonable prospect of the application succeeding and would justify an exercise of the power in s.587(1)(c) of the Act to dismiss the application.

[21] In all of the circumstances the Respondent’s application under s.399A(1) is granted. The application in U2016/10848 is dismissed. An Order to that effect will issue with this Decision. The hearing date on Monday 16 January 2017 is vacated. I have caused a text message to be sent to the Applicant advising him that his unfair dismissal application has been dismissed and that the hearing date has been vacated.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR589389>