Leigh Cartwright v Youi Pty Ltd T/A Youi Insurance

[2018] FWC 4932

[2018] FWC 4932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Leigh Cartwright

v

Youi Pty Ltd T/A Youi Insurance

(U2018/5903)

commissioner wilson melbourne, 24 August 2018

Application for an unfair dismissal remedy – Application dismissed.

1. On 7 June 2018, Mr Leigh Cartwright 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).

1. In his Form F2 – Unfair Dismissal Application, Mr Cartwright stated that he was advised of his termination by Youi Pty Ltd T/A Youi Insurance (Youi) in June 2018, and that his dismissal had taken effect on 18 May 2018.

1. A Notice of Listing was sent to the parties on 18 June 2018 scheduling a conciliation for 5 July 2018. Following this, correspondence was sent to Mr Cartwright, via email, providing him information about the conciliation.

1. On 2 July 2018, the Commission attempted to telephone Mr Cartwright in relation to the conciliation. As this was unsuccessful, a voicemail was left seeking his return call and further email correspondence was sent to Mr Cartwright to confirm his contact details.

1. The conciliation on 5 July 2018 could not take place as Mr Cartwright was unable to be contacted despite a SMS reminder being sent on 4 July 2018 and three attempts to telephone him. Following this, the Commission sent correspondence to the parties advising that if a request for a further conciliation was not received within two working days, the matter would be referred for arbitration.

1. On 6 and 9 July 2018, a total of three attempts to telephone Mr Cartwright were made. These were unsuccessful and a voicemail was left on the second attempt, requesting Mr Cartwright’s return call. The Commission sent a further email to the parties on 9 July 2018 advising that if Mr Cartwright did not contact the Commission by 5:00pm the same day, directions would be issued and the matter would be listed for arbitration.

1. On 10 July 2018, directions were issued to the parties. Mr Cartwright was directed to file material in support of his application by no later than noon on 30 July 2018, and Youi was directed to file its reply material by no later than noon on 20 August 2018.

1. On 13 July 2018, the Commission sent a Notice of Listing to the parties scheduling the matter for an Arbitration Conference/Hearing on 10-12 September 2018.

1. On 31 July 2018, the Commission attempted to telephone Mr Cartwright on two occasions in relation to his overdue material. Both attempts were unsuccessful and a voicemail was left on each occasion seeking his return call. Later the same day, an email was sent to Mr Cartwright advising him that if the Commission did not receive his material or a request for an extension to file his material, the matter would be listed for a non-compliance hearing on 6 August 2018.

1. On 1 August 2018, another attempt to telephone Mr Cartwright was made, but a voicemail was unable to be left. Following this, an email was sent to Mr Cartwright requesting he contact the Commission to advise when he intended on filing his material. The email again stated that if no response was received, the matter would be listed for a non-compliance hearing on 6 August 2018.

1. On 2 August 2018, the Commission made a further attempt to telephone Mr Cartwright. This was unsuccessful and a voicemail was unable to be left. Later the same day, a Notice of Listing was sent to the parties scheduling the non-compliance hearing on 6 August 2018.

1. Shortly after the Notice of Listing was sent, Mr Cartwright sent an email apologising for not communicating with the Commission and explaining that this was because he did not have access to his email. Mr Cartwright’s email further stated that he was unsure of the process in pursuing his matter and expressed some personal concerns.

1. On 3 August 2018, the Commission attempted to telephone Mr Cartwright to discuss his matter and the personal concerns raised in his email sent on 2 August 2018. This was unsuccessful and a voicemail was left seeking his urgent return call. Following this, an email response was sent to Mr Cartwright providing him administrative advice on the process involved in pursuing his matter and explaining the purpose of the non-compliance hearing.

1. The non-compliance hearing proceeded before Commissioner McKinnon on 6 August 2018. Mr Cartwright could not be contacted. Youi made an oral application pursuant to s.399A of the Act that the matter be dismissed as Mr Cartwright had failed to comply with a direction of the Commission. Commissioner McKinnon waived compliance with the Fair Work Commission Rules 2013 and accepted Youi’s s.399A application.

1. Following the non-compliance hearing, correspondence was sent to Mr Cartwright, via email and express post, informing him of Youi’s s.399A application. Mr Cartwright was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 10 August 2018. The correspondence stated that if the Commission did not receive a response, Mr Cartwright’s application for relief from unfair dismissal would be dismissed. A review of the express post tracking ID revealed that the correspondence was delivered to Mr Cartwright on 8 August 2018.

1. On 13 August 2018, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing scheduled on 10-12 September 2018.

1. To date, Mr Cartwright has not filed any material with the Commission.

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.

1. As Mr Cartwright did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Cartwright has failed to respond to the many attempts made by the Commission to contact him, other than sending an email to the Commission on 2 August 2018. Apart from initially filing his application and sending this email, Mr Cartwright has shown no willingness to prosecute his case and has provided no explanation for either his failure to comply with directions or his non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Cartwright’s application.

1. An order giving effect to this decision will be issued today.

COMMISSIONER

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