Matthew Lawson v Driza-Bone Pty Ltd

[2016] FWC 7487

[2016] FWC 7487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Lawson
v
Driza-Bone Pty Ltd
(U2016/11007)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 20 OCTOBER 2016

Application for relief from unfair dismissal—Application dismissed pursuant to s.399A of the Act.

[1] On 6 September 2016, Mr Matthew Lawson made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (Cth) (the Act). Mr Lawson alleged that his employment had been terminated by Driza-Bone Pty Ltd on 14 November 2015 and took effect on 14 December 2015.

[2] On 14 September 2016, Driza-Bone filed its response to the application which included a jurisdictional objection on the grounds that Mr Lawson was not dismissed from his employment and that the application was made out of time.

[3] The matter was listed for conciliation however Driza-Bone requested their jurisdictional objection be heard in the first instance. Accordingly, directions were issued and the matter was listed for jurisdiction hearing.

[4] Mr Lawson was directed to file an outline of argument: extension of time, statements of evidence and other documentary material he wished to rely on in support of his application for an extension of time by 27 September 2016.

[5] Driza-Bone was directed to file an outline of argument: extension of time, statements of evidence and other documentary evidence it wished to rely on in support of its jurisdictional objection by 4 October 2016.

[6] On 28 September 2016, Mr Lawson sent an email to the Fair Work Commission (Commission) submitting that he should be granted an extension of time for the lodgement of his application due to a medical condition which prevented him from lodging his application within the 21 day time period set out in the Act. Mr Lawson did not copy this email to Driza-Bone and a copy was forwarded to Driza-Bone by the Commission that day.

[7] On 29 September 2016, Mr Lawson sent an email to the Commission advising that he was not sure if he should proceed with his application. My Associate spoke with Mr Lawson on 3 October 2016 to ascertain if he wanted to proceed with his application, explaining Commission processes and procedures, and confirming that the matter was listed for jurisdiction hearing on 7 October 2016.

[8] During the phone call on 3 October 2016, Mr Lawson informed my Associate that he had additional materials to support his inability to lodge his application on time. My Associate reminded Mr Lawson that his materials were due to be filed and served by 27 September 2016 however requested that he email them to my chambers, providing a copy to Driza-Bone.

[9] At 10.48pm on 3 October 2016, Mr Lawson sent an email to the Commission which attached four documents, including two letters from general practitioners, a medical certificate and a consent form for the Commission’s Pro Bono Program. Copies of these documents were forwarded to Driza-Bone on 4 October 2016 from my chambers.

[10] On 3 October 2016, Driza-Bone filed an outline of argument, a witness statement and a document list in support of their jurisdictional objection, also providing a copy to Mr Lawson.

[11] On 4 October 2016, my Associate wrote to the parties by email in response to the additional documents that had been filed by Mr Lawson, putting Mr Lawson on notice that in the circumstances, including the lack of detail provided, I did not propose to place significant weight on the materials in the absence of direct evidence. Mr Lawson responded to that email the same day, providing additional information about his medical condition. That email was not copied to Driza-Bone, nor was it forwarded from my chambers.

[12] In response to a query from Driza-Bone in relation to the submissions that had been filed by Mr Lawson, a further email was sent to the parties from my chambers on 5 October 2016. That email confirmed the materials that had been filed by Mr Lawson and reminded the parties that the jurisdiction hearing would proceed on 7 October 2016 as scheduled.

[13] At 9.12am on 7 October 2016, the following email was received in my chambers from Mr Lawson which was not provided to Driza-Bone:

“Hi, I’m sorry for the late notice, but I won’t be able to attend today.”

[14] At 9.42am on 7 October 2016, my Associate wrote to Mr Lawson, copying Driza-Bone, advising that his email was unclear as to whether he was seeking an adjournment. Mr Lawson was advised that requests for an adjournment should be submitted in writing setting out the reasons for the request and that we would then seek the views of Driza-Bone. The email noted that adjournment requests are not automatically granted and that in the absence of such a request by 10am, the hearing would proceed.

[15] Mr Lawson did not respond to that email, nor did he attend the jurisdiction hearing on 7 October 2016. My Associate contacted Mr Lawson at approximately 11.45am to ascertain whether he would be attending the hearing and a voicemail to that effect was left. My Associate called Mr Lawson again at 11.55am on 7 October 2016 and a further voicemail message was left advising that the hearing would be commencing shortly despite his non-attendance. Both messages requested that Mr Lawson contact the Commission.

[16] The hearing proceeded on 7 October 2016 as scheduled and there was no appearance for Mr Lawson.

[17] Mr Mark Mackinnon, Executive Director, appeared for Driza-Bone.

[18] During the hearing, Driza-Bone made an oral application, pursuant to section 399A of the Act, that the application be dismissed as Mr Lawson had unreasonably failed to comply with the directions of the Commission issued on 21 September 2016 and had failed to attend the hearing. I waived compliance with the Fair Work Commission Rules 2013 and accepted Driza-Bone’s oral application.

[19] At 4.32pm on 7 October 2016, a letter was sent to Mr Lawson and copied to Driza-Bone from my Associate advising Mr Lawson that a section 399A application had been made during the hearing that day and directing Mr Lawson to file and serve submissions providing reasons as to why the Commission should not dismiss his application. Mr Lawson was directed to file submissions and any supporting evidence by close of business on 12 October 2016 and was advised that failure to comply with the directions would result in his application being dismissed.

[20] No response to that correspondence or the voicemail messages left for Mr Lawson on 7 October 2016 has been received.

[21] 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.”

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

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

[24] After considering all of the material, and the events that had taken place in the lead up to the hearing, including Mr Lawson’s failure to comply with directions or to attend the hearing, Mr Lawson’s application for remedy from unfair dismissal is dismissed. An order 1 giving effect to this decision will be issued today.

COMMISSIONER

Appearances:

There was no appearance for Mr Lawson.

M Mackinnon for Driza-Bone Pty Ltd.

Hearing details:

2016.

Melbourne:

October 7.

 1   PR586575.

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