Luke Selby v Focus Paint and Polish

[2020] FWC 2318

[2020] FWC 2318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Selby
v
Focus Paint and Polish
(U2020/835)

COMMISSIONER BISSETT MELBOURNE, 5 MAY 2020

Application for an unfair dismissal remedy.

[1] On 26 January 2020 Mr Luke Selby (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Focus Paint and Polish (Respondent), with the dismissal taking effect from 23 December 2019.

[2] The matter was scheduled for a conciliation conference on 16 March 2020. The matter did not settle at the conciliation conference.

[3] On 19 March 2020 the Commission issued Directions to the parties and the matter was listed for an Extension of Time Conference/Hearing on 24 April 2020. The Applicant was directed to file his material by no later than noon on 27 March 2020. No submissions were received from the Applicant by the due date.

[4] On 31 March 2020 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left requesting a return call as soon as possible as his submissions were overdue.

[5] Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that his submissions were overdue and to contact the Commission by noon on 1 April 2020 to advise when he intended to file his submissions. That correspondence also advised that the matter was at risk of being listed for a Non-Compliance Hearing on 3 April 2020.

[6] At 5:04pm on 31 March 2020 the Applicant telephoned the Commission. The call was received after the Commission’s office hours. The Applicant left a voicemail message advising he was returning the Commission’s call and requested the Commission call back.

[7] On 1 April 2020 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left requesting a return call as soon as possible regarding his overdue submissions.

[8] Later that day, the Applicant emailed correspondence to the Commission advising that he had caring responsibilities which prevented him from filing his submissions on time. The Applicant requested an extension until 3 April 2020 to file material. This email correspondence was forwarded to the Respondent.

[9] Amended Directions were issued on 1 April 2020 granting the Applicant an extension to file submissions until noon on 3 April 2020. No submissions were received from the Applicant by the due date.

[10] As no material had been filed, the matter was listed for a Non-Compliance Hearing on 9 April 2020. The Non-Compliance Hearing proceeded before Commissioner Lee. The Applicant did not attend. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with the direction of the Commission. The Commissioner waived compliance of the Fair Work Commission Rules 2013 and accepted the Respondent’s application.

[11] Following the Non-Compliance Hearing, correspondence was sent to the Applicant’s nominated email address advising him of the Respondent’s s.399A application. The correspondence directed the Applicant to file submissions and other documentary material in respect of the s.399A application by no later than 4.00 pm on 16 April 2020. The Applicant was also advised that if no response was received his application would likely be dismissed without further notice. The Applicant did not file any submissions by the due date.

[12] To date, the Applicant has not filed any material with the Commission.

[13] Section 399A of the FW 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.

[14] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to file material and has not provided an explanation to the Commission for his failure to comply with the amended directions of the Commission.

[16] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued with this decision.

COMMISSIONER

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