Michael Willis v G&N Strang Holdings Pty Ltd T/A Queensland National Hotel

[2018] FWC 2425

[2018] FWC 2425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Willis
v
G&N Strang Holdings Pty Ltd T/A Queensland National Hotel
(U2018/2758)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 MAY 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 16 March 2018, Mr Michael Willis 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 Willis said that his employment had been terminated by G&N Strang Holdings Pty Ltd T/A Queensland National Hotel (QNH) on 2 March 2018.

[2] On 20 March 2018, QNH declined participation in a conciliation conference and the matter was referred for arbitration by a Member of the Commission.

[3] On 26 March 2018, directions were issued by the Commission. Mr Willis was directed to file material in support of his application by no later than noon on 16 April 2018. QNH was directed to file material in opposition to the application by no later than noon on 7 May 2018.

[4] On 28 March 2018, amended directions were issued by the Commission. Mr Willis was directed to file material in support of his application by no later than noon on 16 April 2018. QNH was directed to file material in opposition to the application by no later than noon on 8 May 2018. Mr Willis failed to file any material.

[5] On 16 April 2018, the Commission telephoned Mr Willis’ representative as recorded on his Form F2 – Unfair dismissal application, Mr Atul Dara of the Aboriginal and Torres Strait Islander Legal Service Queensland. The Commission advised that it was yet to receive material from Mr Willis as per the directions issued on 28 March 2018. Mr Dara advised that the parties had reached an in principle settlement agreement. The Commission requested that Mr Dara confirm this in writing and upon receipt of this confirmation, the Commission would vacate directions.

[6] On 17 April 2018, the Commission telephoned Mr Dara as it had not yet received written confirmation of an in principle settlement agreement. Mr Dara confirmed he had not yet received a response from QNH regarding his proposal to settle the matter. The Commission noted that it appeared no in principle agreement had been reached. Accordingly, Mr Dara was informed that Mr Willis was non-compliant with directions and that this matter may be referred for a non-compliance hearing if material was not received. Mr Dara advised that Mr Willis was unable to comply with directions due to a “family emergency” and that he had been instructed by Mr Willis to reach a settlement with QNH. The Commission advised Mr Dara that he may make a request for an extension to file material on this basis. Mr Dara was also advised that the Commission must receive his extension request prior to noon on 18 April 2018, otherwise the matter would be listed for a non-compliance hearing. On the same day, the Commission sent email correspondence to Mr Dara confirming the details of the telephone conversation and that an extension request must be received by no later than noon on 18 April 2018, or the matter would be listed for a non-compliance hearing on 20 April 2018.

[7] On 18 April 2018, the Commission received an email from Mr Dara attaching a Form F54 – Notice of representative ceasing to act. On the same day, the Commission attempted to contact Mr Willis by telephone regarding his material. Mr Willis did not answer the call and the Commission was unable to leave a voicemail message. Mr Willis was then sent an SMS message requesting he contact the Commission urgently regarding his application. Further, the Commission sent email correspondence to Mr Willis stating:

“I… note that your representative has ceased acting on your behalf in the matter.

I refer to the Notice of Listing issued to you on 28 March 2018.

…

The Notice of Listing contained requirements for you to file an outline of submissions and any witness statements and other documentary material you intended to rely on in support of your application by no later than noon on Monday, 16 April 2018.

To date nothing has been received from you or your former representative by the Fair Work Commission. Any materials filed after the compliance date will be marked as late and brought to the attention of the Presiding Member.

If no submissions are received, the matter will be listed for a Non-Compliance Hearing on Friday, 20 April 2018. The unfair dismissal application may be dismissed as a result of the Non-Compliance Hearing.”

[8] On 19 April 2018, the Commission again attempted to contact Mr Willis by telephone to advise that his matter would be listed for a non-compliance hearing the following day. Mr Willis did not answer the call and the Commission was unable to leave a voicemail message. On the same day, a Notice of Listing was sent to the parties confirming the non-compliance hearing was to take place the following day, 20 April 2018.

[9] On 20 April 2018, a non-compliance hearing proceeded before Commissioner Bissett. Mr Willis could not be contacted for the hearing. QNH was represented by Mr Paul Emmerson of Emmerson Legal & Accounting. Mr Emmerson made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Willis’ failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted QNH’s oral application.

[10] Following the non-compliance hearing, correspondence was sent to Mr Willis’ nominated email address and by express post to his postal address advising him of QNH’s s.399A application. This correspondence was confirmed to have been received at Mr Willis’ postal address on 23 April 2018. Mr Willis was directed to file submissions and other documentary material in respect of the s.399A application by no later than close of business on 27 April 2018. This correspondence stated that if the Commission did not receive a response, Mr Willis’ application for relief from unfair dismissal would be dismissed.

[11] To date, Mr Willis 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 Willis 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 Willis has failed to respond to numerous attempts by the Commission to contact him. Other than seeking assistance to initially file his application, Mr Willis 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 Willis’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR606707>