Lloyd Cayzer v Unigrain Pty Ltd

[2017] FWC 3344

[2017] FWC 3344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lloyd Cayzer
v
Unigrain Pty Ltd
(U2017/2511)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 JUNE 2017

Application for an unfair dismissal remedy.

[1] On 7 March 2017, Mr Lloyd Cayzer made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Cayzer stated he was dismissed by Unigrain Pty Ltd (Unigrain) on 9 February 2017.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application lodged on 24 March 2017, Unigrain raised jurisdictional objections to Mr Cayzer’s application, including that it was made outside of the 21 day time period allowed for lodging unfair dismissal applications.

[3] The matter was initially listed for conciliation on 26 April 2017 at 11:15am Australian Western Standard Time (AWST), however it could not take place as Mr Cayzer could not be contacted. Consequently, email correspondence was sent by the Fair Work Commission (Commission) advising the parties that if they wished for the matter to proceed via further conciliation they were to contact the Commission within two days or the matter would be referred for arbitration.

[4] Mr Cayzer telephoned the Commission later that day to inform that he was in China and had been awaiting the conciliation when he had received the Commission’s correspondence. The Commission subsequently advised Mr Cayzer that if he wished for the matter to proceed to a further conciliation he would need to make this request in writing.

[5] Later on 26 April 2017, the Commission received an email from Mr Cazyer requesting that the matter proceed to another conciliation. In a further email, Mr Cayzer provided an alternative number for contacting him while he was in China. On 28 April 2017, the Commission sent a Notice of Listing to the parties relisting the matter for conciliation on 16 May 2017 at 9:15am AWST.

[6] On 11 May 2017, the Commission attempted to contact Mr Cayzer to confirm the number he had provided for the conciliation, however this was unsuccessful. Email correspondence was therefore sent to Mr Cazyer advising him that in the absence of a confirmed contact number, the Commission would attempt to contact him on the telephone number listed on his Form F2 – Application.

[7] On 15 May 2017, a Short Message Service (SMS) reminder was sent to the parties regarding conciliation. On 16 May 2017, the conciliation listed for 9:15am AWST could not take place as Mr Cayzer could not be contacted. A message was received by the conciliator which stated that Mr Cayzer’s telephone was “powered off”. Approximately twenty five minutes later, the conciliator received further advice that Mr Cayzer had emailed the Commission with a mobile telephone number he could be contacted on.

[8] After contacting Mr Cayzer on this number, an attempt was made to re-connect with Unigrain. As the confirmed participants from Unigrain were in a meeting at the time, a message was left to return the call. Unigrain returned the conciliator’s call shortly after and stated that it wished for the matter to proceed to a jurisdictional hearing to determine the out of time issue raised in its Form F3. Consequently, on 24 May 2017, directions were issued and the matter was listed for Extension of Time Conference/Hearing.

[9] Mr Cayzer was directed to file an outline of submissions, witness statements and other documentary material he intended to rely on by noon, Wednesday 31 May 2017. These directions were sent to Mr Cayzer via post and email. Mr Cayzer did not file any material by the due date.

[10] On 2 June 2017, Unigrain telephoned the Commission and inquired as to the options available to it following Mr Cayzer’s non-compliance with directions. The Commission advised it was open to Unigrain to make an application under s.399A of the Act seeking that Mr Cayzer’s application be dismissed. Following a request for more information regarding the making of an s.399A application, the Commission sent an email to Unigrain attaching a Form F1 – Application. Later that day, Unigrain lodged a Form F1 in which it sought that Mr Cayzer’s unfair dismissal application be dismissed pursuant to s.399A of the Act.

[11] On 2 June 2017, the Commission attempted to telephone Mr Cayzer, however there was no answer and a voicemail message could not be left. An SMS message was then sent to Mr Cayzer, advising that his submissions due on 31 May 2017 were overdue and requesting that he return the Commission’s call.

[12] On 5 June 2017, the Commission sent correspondence to Mr Cayzer informing him of Unigrain’s s.399A application. This correspondence directed Mr Cayzer to file submissions and other documentary material in respect of Unigrain’s application by close of business on Monday, 12 June 2017. Mr Cayzer was advised that if he failed to comply with this direction, his application would be dismissed.

[13] On 19 June 2017, the Commission attempted to telephone Mr Cayzer but the call was unable to connect. A subsequent email was sent to Mr Cayzer advising him that if he did not contact the Commission by close of business, his application would be dismissed as per the advice of correspondence dated 5 June 2017.

[14] To date, Mr Cayzer has not responded to the Commission’s correspondence or filed any material.

[15] 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.

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

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

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Cayzer has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application, Mr Cayzer has shown a lack of willingness to prosecute his case and provided no explanation for his failures to file submissions or respond to the s.399A application. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Cayzer’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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