Michael Hartman v Talvor Motorhomes

[2017] FWC 741

[2017] FWC 741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Hartman
v
Talvor Motorhomes
(U2016/13503)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 FEBRUARY 2017

Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A.

[1] On 10 November 2016, Mr Michael Hartman made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Hartman said that his employment had been terminated by Talvor Motorhomes (Talvor) on 31 October 2016.

[2] The matter was initially listed for conciliation at 10:15am on 6 December 2016 but was subsequently rescheduled for 11:15am on the same day. An initial Notice of Listing was issued by the Fair Work Commission (Commission) on 11 November 2016 and was sent to the email and postal addresses provided by Mr Hartman on his F2 Application form. A second Notice of Listing regarding the change to conciliation time was sent on 5 December 2016 to Mr Hartman’s email address.

[3] The conciliation listed for 11:15am on 6 December 2016 did not take place due to Mr Hartman verbally advising the conciliator that he did not receive the correspondence and was unavailable to attend due to work commitments.

[4] On 8 December 2016, Talvor filed a Form F3 – Employer Response to Unfair Dismissal Application, stating that it had terminated Mr Hartman’s employment on 24 October 2016.

[5] On 14 December 2016, a further Notice of Listing was sent to parties listing the matter for Arbitration Conference/Hearing on 15-17 February 2017. This correspondence contained Directions for Mr Hartman to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on Tuesday 3 January 2017.

[6] Mr Hartman did not comply with these Directions. The Commission attempted to make telephone contact with Mr Hartman on 4 January 2017 to raise the non compliance with Directions and left a voicemail message asking that he return the call. Email correspondence was also sent by the Commission on the same day, advising Mr Hartman that if he did not contact the Commission by 6 January 2017, his matter would be listed for a non compliance hearing.

[7] The Commission further attempted to telephone Mr Hartman on 6 and 9 January 2017 and left two voicemail messages requesting that he urgently contact the Commission.

[8] On 10 January 2017, the Commission received a voicemail message from Mr Hartman returning the earlier telephone calls. On 11 January 2017, the Commission made telephone contact with Mr Hartman, who stated that he had been away and was unaware of the Directions to file material by 3 January 2017. Mr Hartman was subsequently advised that his matter would proceed to a non compliance hearing on 13 January 2017 and the process of this hearing was explained to him.

[9] Mr Hartman did not attend the non compliance hearing before Commissioner Bissett on 13 January 2017. Talvor made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Hartman had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Talvor’s oral application.

[10] On 13 January 2017, Mr Hartman was sent correspondence informing him of Talvor’s section 399A application. Mr Hartman was directed to file submissions and other documentary material in respect of Talvor’s application by close of business, on 20 January 2017. Mr Hartman was advised that if he failed to comply with this direction, his application would be dismissed.

[11] Mr Hartman did not file 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 Hartman 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 Hartman has not shown a willingness to prosecute his case and nor has he provided an explanation for his failure to comply with directions. In these circumstances, I will exercise my discretion under s.399A(1)(b) and dismiss Mr Hartman’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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