Lachlan Cox v The Trustee for the Peninsual Heating Cooling & Electrical Unit Trust T/A Peninsula Heating and Cooling

[2019] FWC 4554

[2019] FWC 4554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lachlan Cox
v
The Trustee for the Peninsual Heating Cooling & Electrical Unit Trust T/A Peninsula Heating and Cooling
(U2019/2575)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 JULY 2019

Application for an unfair dismissal remedy.

[1] On 7 March 2019, Mr Lachlan Cox 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).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Cox said he was notified that his employment had been terminated by The Trustee for the Peninsual Heating Cooling & Electrical Unit Trust T/A Peninsula Heating and Cooling (PHC) on 14 February 2019, and that the dismissal took effect on the same day.

[3] The Form F2 named Ms Vanessa Nikolovska of Unfair Dismissals Direct as Mr Cox’s representative, and was filed via email on his behalf by Ms Tamina Sarwari, also of Unfair Dismissals Direct.

[4] On 24 April 2019, the Commission sent a Notice of Listing scheduling the matter for a conciliation on 6 May 2019. The Notice of Listing was sent to Ms Nikolovska’s email address and to Mr Cox’s postal address.

[5] Despite three attempts on 6 May 2019, the Commission was unable to contact Mr Cox for the conciliation. Ms Nikolovska advised the Commission conciliator that she had been unable to contact Mr Cox for a few days and had also not been able to contact him for the conciliation that day. The conciliation was therefore unable to proceed and a representative for PHC declined a further opportunity for conciliation.

[6] On 8 May 2019, the Commission sent correspondence to the parties advising that if Mr Cox wished to proceed to a further conciliation, he or Ms Nikolovska were required to request this within two working days.

[7] On 14 May 2019, the Commission emailed Unfair Dismissals Direct advising that the matter was to be referred for arbitration and requesting confirmation as to whether it was still acting for Mr Cox in his matter. Later the same day, an email was received from Ms Lana Coombs of Unfair Dismissals Direct advising that it was still representing Mr Cox and expressing its preference to have the matter relisted for another conciliation prior to hearing.

[8] A letter dated 15 May 2019 was sent to the parties advising that as the Commission had not heard from Mr Cox, his matter would now proceed to arbitration.

[9] On the following day on 16 May 2019, the Commission issued a Notice of Listing scheduling the matter for an Arbitration Conference/Hearing on 17 to 19 July 2019. Directions were also issued requiring Mr Cox to file an Outline of Argument, Statement(s) of Evidence and Document List by no later than noon on 3 June 2019. The Notice of Listing was sent to the email addresses of both Mr Cox and Ms Nikolovska.

[10] On 22 May 2019, at the request of PHC, the Commission rescheduled the Arbitration Conference/Hearing to 29 to 31 July 2019 and an amended Notice of Listing was sent to the parties to confirm the details. The Directions were also amended, requiring Mr Cox to file his material by no later than noon on 11 June 2019. The amended Notice of Listing was sent to the email addresses of Mr Cox, Ms Nikolovska and Mr Tim Rizzuto of Unfair Dismissals Direct.

[11] No material was received either from Mr Cox or from Unfair Dismissals Direct on his behalf by noon on 11 June 2019. As a result, the Commission attempted to telephone Unfair Dismissals Direct on the evening of 11 June 2019 to enquire about Mr Cox’s material, and left a voicemail message when the telephone call was not answered.

[12] On the morning of 12 June 2019, the Commission left a further voicemail message with Unfair Dismissals Direct in relation to Mr Cox’s overdue material. Following this, an email was sent to Ms Nikolovska warning that if she did not contact the Commission by 4:00pm the same day, Mr Cox’s matter would be listed for a non-compliance hearing. Mr Cox’s nominated email address was carbon copied into this correspondence.

[13] As no response was received from either Mr Cox or his representative, the matter was listed for a non-compliance hearing and a Notice of Listing was sent to the parties confirming the details on 13 June 2019. Later the same day, an email was received from Ms Sarwari confirming her contact details for the non-compliance hearing.

[14] The non-compliance hearing proceeded before me on 14 June 2019. Mr Cox could not be contacted. Ms Sarwari appeared on Mr Cox’s behalf and advised me that Unfair Dismissals Direct had not been able to contact Mr Cox since 21 May 2019. She further advised that she recently took carriage of the matter and so was unaware of the Commission’s attempts to contact Unfair Dismissals Direct. PHC made an oral application that the matter be dismissed pursuant to s.399A of the Act due to Mr Cox’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[15] Following the non-compliance hearing, Mr Cox returned a telephone call to my chambers and was advised that the telephone call to him earlier that morning was in relation to a non-compliance hearing, which had proceeded in his absence. My chambers also advised Mr Cox that he could expect further correspondence from the Commission in due course.

[16] Later that day, correspondence was sent to Mr Cox’s nominated email and postal addresses, as well as the email addresses of Ms Sarwari and Ms Nikolovska, advising them of PHC’s s.399A application. Mr Cox was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00pm on 21 June 2019. The correspondence noted that if the Commission did not receive a response, Mr Cox’s application for relief from unfair dismissal may be dismissed.

[17] On 25 June 2019, as no response was received from Mr Cox or his representative, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing scheduled for 29-31 July 2019.

[18] To date, neither Mr Cox nor his representative have filed any material with the Commission.

[19] 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.”

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

[21] As Mr Cox did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[22] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing his application, Mr Cox has failed to actively prosecute his case. Despite being represented by Unfair Dismissals Direct, Mr Cox has not been in contact with his representative since 21 May 2019 in a way that would enable his matter to be advanced. Mr Cox has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the non-compliance hearing on 14 June 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Cox’s application. This ends his unfair dismissal application.

[23] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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