Mathew Norton v John Blair Motor Sales Pty Ltd T/A John Blair Honda

[2018] FWC 3152

[2018] FWC 3152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mathew Norton
v
John Blair Motor Sales Pty Ltd T/A John Blair Honda
(U2018/2463)

COMMISSIONER BISSETT MELBOURNE, 1 JUNE 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 9 March 2018, Mr Mathew Norton 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). Mr Norton said that his employment had been terminated by John Blair Motor Sales Pty Ltd T/A John Blair Honda (JBH) on 21 February 2018.

[2] On 16 March 2018, JBH filed its Form F3 – Employer response to unfair dismissal application (Form F3) in which it raised a jurisdictional objection to Mr Norton’s application. JBH objected on the basis that Mr Norton had not met the minimum employment period of six months.

[3] The matter was listed for conciliation on 9 April 2018, however the matter did not proceed as JBH did not wish to participate. In an email to the Commission on 6 April 2018, Mr Edmond Koco, Managing Director of JBH, said that JBH was withdrawing from the conciliation due to the issue of jurisdiction and that it had evidence to support its contention that Mr Norton had not met the minimum employment period.

[4] On 11 April 2018, the Commission attempted to contact Mr Koco by telephone to discuss JBH’s jurisdictional objection. A voicemail message was left requesting a return call.

[5] On 13 April 2018, Mr Koco returned the Commission’s call and advised that JBH no longer pursued its jurisdictional objection. On the same day, the Commission received email correspondence from JBH confirming that it was withdrawing its jurisdictional objection and requesting that the matter be listed for conciliation. Following JBH’s request for a conciliation, the Commission sent email correspondence to Mr Norton to confirm whether he would like to participate. Later that day, he replied to the Commission’s email confirming that he agreed to participate in a pre-arbitration conciliation.

[6] On 16 April 2018, directions were issued by the Commission. Mr Norton was directed to file material in support of his application by no later than noon on 30 April 2018. JBH was directed to file its material in opposition to the application by no later than noon on 14 May 2018.

[7] On 17 April 2018, the Commission attempted to contact Mr Norton by telephone regarding the scheduling of the conciliation. A voicemail message was left requesting that he return the Commission’s call. On the same day, email correspondence was sent by the Commission requesting Mr Norton confirm his preferences for the scheduling of the conciliation. Later that day, Mr Norton replied to the Commission’s email advising his preferred date and time for the conciliation.

[8] In the afternoon of 30 April 2018, the Commission attempted to contact Mr Norton by telephone as he had failed to file any submissions. As he did not answer, the Commission left a voicemail message requesting a return call. On the same day, the Commission sent email correspondence to Mr Norton stating that it had not yet received his submissions. This email advised that if the Commission did not receive an extension request or submissions from Mr Norton by noon on 2 May 2018, the matter would be listed for a non-compliance hearing on 4 May 2018.

[9] On 1 May 2018, the Commission again attempted to contact Mr Norton by telephone regarding his submissions. As he did not answer, a voicemail message was left requesting a return call.

[10] On 2 May 2018, the Commission made a further attempt to contact Mr Norton by telephone as no extension request or submissions had been received. Again, Mr Norton did not answer and a voicemail message was left explaining that a non-compliance hearing would be listed and his application may be dismissed as a result of the hearing. On the same day, a Notice of Listing was sent to the parties by email confirming a non-compliance hearing was proceeding on 4 May 2018. The Notice of Listing was also sent to Mr Norton by express post and was confirmed to have been delivered to him on 3 May 2018.

[11] On 3 May 2018, Mr Norton was sent an SMS message confirming that the matter had been listed for a non-compliance hearing the following day. This message included the date and time of the hearing and advised Mr Norton that he would be contacted by telephone at the commencement of the hearing.

[12] On 4 May 2018, a non-compliance hearing proceeded before Commissioner McKinnon. Mr Norton could not be contacted for the hearing. JBH made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Norton’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted JBH’s oral application. The Commissioner directed that a further attempt be made to contact Mr Norton by email and post, allowing him seven days to file an extension request or his submissions. The Commissioner advised that should Mr Norton fail to respond within seven days, JBH’s s.399A application would then be considered.

[13] Following the non-compliance hearing, correspondence was sent to Mr Norton’s nominated email and postal addresses advising him of the Commissioner’s direction to file his material or an extension request within seven days. The correspondence also advised Mr Norton of JBH’s s.399A application. Mr Norton was directed to file his submissions or an extension request by no later than close of business on 11 May 2018. This correspondence stated that if Mr Norton failed to respond, JBH’s application under s.399A would be considered. Mr Norton failed to respond.

[14] On 17 May 2018, further correspondence was sent to Mr Norton’s nominated email and postal addresses regarding JBH’s s.399A application. The correspondence advised that the matter had now been allocated to Deputy President Clancy. The Deputy President directed Mr Norton to file submissions and other documentary material in respect of JBH’s s.399A application by no later than close of business on 24 May 2018. Further, it stated that if the Commission did not receive a response, Mr Norton’s application for relief from unfair dismissal would be dismissed. The correspondence was sent to Mr Norton by express post and was confirmed to have been delivered to him on 18 May 2018.

[15] To date, Mr Norton has not filed any material with the Commission.

[16] 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.

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

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

[19] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Commission’s last contact with Mr Norton was on 17 April 2018, and from this time he has failed to respond to numerous attempts made by the Commission to contact him. Other than the initial filing of his application and consenting to participate in a pre-arbitration conciliation, Mr Norton has shown no willingness to prosecute his case and he has failed to file any material, despite being granted a further seven days following the non-compliance hearing. Furthermore, Mr Norton has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing.

[20] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Norton’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

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