Maurice Prendergast v Aged Care Services Australia Group Pty Ltd T/A Kirralee Aged Care Facility

[2018] FWC 2195

[2018] FWC 2195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maurice Prendergast
v
Aged Care Services Australia Group Pty Ltd T/A Kirralee Aged Care Facility
(U2018/363)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 APRIL 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 11 January 2018, Mr Maurice Prendergast 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).

[2] Mr Prendergast said that his employment had been terminated by Aged Care Services Australia Group Pty Ltd T/A Kirralee Aged Care Facility (Kirralee) on 22 December 2017, with the dismissal taking effect on 24 December 2017.

[3] The matter was listed for conciliation on 16 February 2018, however the matter did not settle.

[4] On 26 February 2018, directions were issued by the Commission. Mr Prendergast was directed to file submissions in support of his application by no later than noon on 19 March 2018. Kirralee was directed to file submissions in opposition to the application by no later than noon on 9 April 2018. Mr Prendergast did not file any material.

[5] On 19 March 2018, the Commission contacted Mr Prendergast by telephone regarding his failure to file submissions. Mr Prendergast advised that he had not received the directions sent by the Commission as he had not had access to his email. The Commission’s records show that the directions were sent to Mr Prendergast’s nominated email address and postal address.

[6] On 21 March 2018, the Commission granted Mr Prendergast an extension to file his material. Amended directions were issued directing Mr Prendergast to file his submissions by no later than noon on 22 March 2018. Kirralee was directed to file its submissions by no later than noon on 12 April 2018. Mr Prendergast did not file any material.

[7] On 26 March 2018, the Commission sought to contact Mr Prendergast by telephone regarding his failure to file submissions. He did not answer and he did not return the call. On the same day, email correspondence was sent to Mr Prendergast stating that his submissions were now overdue. This email requested that Mr Prendergast contact the Commission to advise when he intended to file his submissions and warned that if the Commission did not receive a response, that the matter would be listed for a non-compliance hearing. The Commission did not receive a response to the correspondence.

[8] On 27 March 2018, the Commission again sought to contact Mr Prendergast by telephone regarding his failure to file submissions. As he did not answer, a voicemail message was left requesting he return the Commission’s call. On the same day, Mr Prendergast was sent a further email stating that his submissions overdue and asked that he contact the Commission to advise when he intended to file his submissions. This email warned that if the Commission did not receive a response by 4.00pm that day, that the matter would be listed for a non-compliance hearing. The Commission did not receive a response.

[9] On 28 March 2018, the Commission made a further attempt to contact Mr Prendergast by telephone to advise that the matter would now be listed for a non-compliance hearing. As he did not answer, a voicemail message was left requesting he return the Commission’s call. On the same day, a notice of listing was sent to Mr Prendergast’s nominated email address and postal address confirming the scheduling of a non-compliance hearing on 3 April 2018. The listing was sent by express post which was confirmed to have been delivered to Mr Prendergast on 29 March 2018. Mr Prendergast was also sent an SMS advising the date and time of the non-compliance hearing.

[10] On 3 April 2018, I presided over the non-compliance hearing. Mr Prendergast did not attend despite attempts to contact him. Kirralee made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Prendergast had failed to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Kirralee’s oral application. Mr Prendergast was subsequently sent correspondence informing him of Kirralee’s s.399A application. He was directed to file submissions and other documentary material in respect of this application by close of business 10 April 2018. Mr Prendergast was advised that if he failed to comply with this direction, his application would be dismissed.

[11] To date, Mr Prendergast has not filed any material with the Commission.

[12] 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.

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

[14] As Mr Prendergast 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. Mr Prendergast has failed to respond to numerous attempts made by the Commission to contact him. Following the conciliation conference, Mr Prendergast has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Prendergast’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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