Michael James Jackson v Topcut Meats

[2018] FWC 3971

[2018] FWC 3971

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael James Jackson
v
Topcut Meats
(U2018/3938)

COMMISSIONER BISSETT SYDNEY, 5 JULY 2018

Application for an unfair dismissal remedy.

[1] On 16 April 2018, Mr Michael Jackson 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 Jackson said his employment had been terminated by Topcut Meats on 28 March 2018.

[2] The matter was listed for conciliation on 9 May 2018, however it could not proceed as Mr Jackson could not be contacted. Consequently, on 15 May 2018, directions were issued to the parties and the matter was listed for hearing. Mr Jackson was directed to file his material by no later than noon on 5 June 2018 and Topcut Meats was to file its material by no later than noon on 26 June 2018.

[3] On 17 May 2018, Topcut Meats made an application pursuant to ss.399A(1)(a) and 587(1)(b) of the Act that the matter be dismissed on the grounds Mr Jackson failed to attend a conciliation conference and that the application is frivolous or vexatious. This application was subsequently withdrawn by Topcut Meats on 28 May 2018.

[4] In the afternoon of 5 June 2018, the Commission attempted to telephone Mr Jackson regarding his overdue submissions. This was unsuccessful and a voicemail message was left seeking a return call. The following day, Mr Jackson telephoned the Commission and advised he was away working and would need to seek an extension to file his material. Mr Jackson was advised to put the request in writing as soon as possible. He was also advised that if no request was received or his material was not filed, the matter may go to a non-compliance hearing. Mr Jackson said he would send the email when he finished work that afternoon.

[5] On 7 June 2018, the Commission again attempted to contact Mr Jackson as no correspondence had been received, nor his material. A voicemail message was left requesting a return call as soon as possible.

[6] On 12 June 2018, an email was sent to Mr Jackson confirming that if no extension request or submissions were received by 12.00pm on 13 June 2018, his matter would be listed for a non-compliance hearing on 15 June 2018.

[7] On 14 June 2018, a further voicemail message was left for Mr Jackson which confirmed the matter would be proceeding to a non-compliance hearing at 12.00pm on 15 June 2018. Confirmation of his best contact phone number was sought. A Notice of Listing was then issued to the parties via email confirming the details of the non-compliance hearing.

[8] The non-compliance hearing proceeded before Commissioner Harper-Greenwell on 15 June 2018. Mr Jackson 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 Jackson’s failure to attend the conciliation conference and the non-compliance hearing, and also his failure to comply with the direction of the Commission. Commissioner Harper-Greenwell waived compliance with the Fair Work Commission Rules 2013 and accepted Topcut Meats’ oral application. Following the non-compliance hearing, correspondence was sent to Mr Jackson informing him of Topcut Meats’ s.399A application. Mr Jackson was directed to file submissions as to why the Commission should not dismiss his application by close of business on 21 June 2018.

[9] To date, Mr Jackson has not filed any material with the Commission.

[10] 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.

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

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Apart from initially filing his application and indicating an extension to file material would be made (which did not occur), Mr Jackson has shown no willingness to prosecute his case. In these circumstances, I am persuaded that I should exercise my discretion under ss.399A(1)(a) and 399A(1)(b) of the Act and dismiss Mr Jackson’s application. As regards s.399A(1)(a) of the Act, I am persuaded to exercise my discretion on the basis of Mr Jackson’s non-attendance at the non-compliance hearing before Commissioner Harper-Greenwell and his failure to provide any explanation for his absence. Mr Jackson’s failure to attend the conciliation conference on 9 May 2018 does not persuade me to exercise my discretion under s.399A(1)(a). As regards s.399A(1)(b) of the Act, I am persuaded to exercise my discretion on the basis of Mr Jackson failing to file his material per the direction issued to him on 15 May 2018 to file material by noon on 5 June 2018. This was despite the fact Mr Jackson was advised via telephone on 6 June 2018 that any extension request should be put in writing to the Commission. Mr Jackson did not make any formal request for an extension to file his material and nor did he file any material.

[14] An order giving effect to this decision will be issued concurrently.

COMMISSIONER

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