Michael Anthony v 12 Services of Topcut Foods (WA) Pty Ltd T/A Topcut Meats

[2019] FWC 995

[2019] FWC 995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Anthony
v
12 Services of Topcut Foods (WA) Pty Ltd T/A Topcut Meats
(U2018/12271)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 28 November 2018, Mr Michael Anthony 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 Anthony said his employment had been terminated by 12 Services of Topcut Foods (WA) Pty Ltd T/A Topcut Meats (Topcut Meats) on 28 November 2018.

[2] The matter was listed for conciliation on 20 December 2018, however it did not resolve.

[3] On 31 December 2018, a Notice of Listing was sent to the parties scheduling an Arbitration Conference/Hearing on 5-7 March 2019. Directions were also issued for the filing of material, directing Mr Anthony to file by no later than 21 January 2019.

[4] No material was received from Mr Anthony by 21 January 2019. The Commission attempted to telephone him on the afternoon of 21 January 2019 but he was unable to be reached, so a voicemail message was left requesting an urgent return call in relation to his overdue material.

[5] On 22 January 2019, the Commission again attempted to telephone Mr Anthony but was unable to reach him. A voicemail message was left requesting his return call. Following this, the Commission sent Mr Anthony email correspondence warning that if he did not file his material or request an extension for the filing of his material by 12:00pm the next day, the matter would be listed for a non-compliance hearing. The correspondence further indicated that his application may be dismissed as a result of the non-compliance hearing.

[6] As no response was received from Mr Anthony, on 23 January 2019, a Notice of Listing was sent to the parties scheduling the matter for a non-compliance hearing on 25 January 2019.

[7] On 24 January 2019, the Commission attempted to telephone Mr Anthony but was unable to reach him. A voicemail message was left advising him that the matter was listed for a non-compliance hearing the next day and further requesting that he urgently return the Commission’s call.

[8] The non-compliance hearing proceeded before Commissioner Wilson on 25 January 2019. Mr Anthony could not be contacted. Topcut Meats made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Anthony’s failure to comply with the direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Topcut Meats’ oral application.

[9] Following the non-compliance hearing, correspondence was sent to Mr Anthony’s nominated email advising him of Topcut Meats’ s.399A application. Mr Anthony was directed to file submissions and other documentary material in respect of the s.399A application by no later than close of business on 1 February 2019. This correspondence also stated that if the Commission did not receive a response, Mr Anthony’s application for relief from unfair dismissal would be dismissed.

[10] On 25 January 2019, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing scheduled on 5-7 March 2019.

[11] To date, Mr Anthony 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 Anthony 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. Other than filing his application and attending the conciliation, Mr Anthony has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with the 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 Anthony’s application.

[16] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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