Micheal Sinclair v Wormall Civil Pty Ltd

[2018] FWC 1395

[2018] FWC 1395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Micheal Sinclair
v
Wormall Civil Pty Ltd
(U2018/578)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 MARCH 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 19 January 2018, Mr Micheal Sinclair 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 Sinclair said that his employment had been terminated by Wormall Civil Pty Ltd (Wormall) on 21 December 2017.

[2] On 24 January 2018, Wormall lodged their F3 Employer Response Form raising two jurisdictional objections. Wormall submitted that Mr Sinclair’s application was lodged outside of the 21 day timeframe required by the Act and that Mr Sinclair was not dismissed, stating that Mr Sinclair and Wormall had mutually agreed to terminate his employment.

[3] On 25 January 2018, the Commission contacted Wormall to confirm their attendance at a conciliation conference. Wormall stated that they would prefer to have the matter proceed directly to a formal hearing to have their jurisdictional objections decided. Consequently, the matter was referred for arbitration before a Member of the Commission.

[4] On 2 February 2018, directions were issued by the Commission. A copy of the directions were sent by email and post to the parties. Mr Sinclair was directed to file his submissions in support of his application for an extension of time, by 9 February 2018. Wormall was directed to file their submissions in reply by 16 February 2018. Mr Sinclair failed to file any material.

[5] On 9 February 2018, after close of business, Mr Sinclair contacted the Commission requested the Commission return his call to discuss an extension to file his submissions.

[6] On 12 February 2018, in a telephone call with the Commission, Mr Sinclair was advised that his submissions were now overdue and that he must make a request for an extension of time or file his material as a matter of urgency. On the same day, Mr Sinclair sent an email to the Commission requesting an extension to file his submissions. He submitted that he had only received the mailed copy of the directions on 9 February 2018, the day submissions were due. The Commission’s records indicate the directions were emailed and sent to Mr Sinclair’s nominated address on 2 February 2018.

[7] On 13 February 2018, the Commission notified the parties that Mr Sinclair had been granted an extension of time to file his submissions by me. Amended directions were emailed to the parties confirming that Mr Sinclair was now required to file by 5.00pm that day. Wormall were directed to file their submissions in reply by 20 February 2018. However, Mr Sinclair failed to file any material.

[8] On 15 February 2018, the Commission contacted Mr Sinclair by telephone to discuss his failure to file submissions. Mr Sinclair stated that he had sent an email to the Commission explaining why he lodged his application outside the 21 day time frame. The Commission advised that this had not been received. Mr Sinclair then advised he was unable to discuss the matter further at the present time. The Commission requested that he return the call as soon as possible to finalise the discussion. He did not return the call. An email was subsequently sent to Mr Sinclair stating that his submissions were overdue, and requested that he advise the Commission why he had failed his submissions. This email stated that if the Commission did not receive a response, the matter would be listed for a non-compliance hearing. Mr Sinclair failed respond to the Commission’s correspondence.

[9] On 16 February 2018, the Commission contacted Mr Sinclair by telephone regarding his overdue submissions. As he did not answer, a voicemail message was left notifying him that his mater would be scheduled for a non-compliance hearing if he failed to contact the Commission. Mr Sinclair did not return the Commission’s call.

[10] On 20 February 2018, the Commission contacted Mr Sinclair to advise that the matter would now be listed for a non-compliance hearing. A voicemail message was left providing the details of the hearing and requested that Mr Sinclair return the Commission’s call. He failed to return the call. A Notice of Listing was subsequently emailed and posted to the parties confirming the non-compliance hearing to be held on 23 February 2018.

[11] On 23 February 2018, the matter was subject of a non-compliance hearing before Deputy President Gooley. Despite attempts to contact Mr Sinclair, he did not attend the non-compliance hearing. At the hearing, Wormall made an oral application under section 399A of the Act requesting that the matter be dismissed due to the failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Wormall’s oral application. Accordingly, the directions of the Commission and the hearing dates were vacated.

[12] On 23 February 2018, following the non-compliance hearing, a letter was sent to Mr Sinclair by email advising him that an application under section 399A had been made by Wormall. Mr Sinclair was directed to file and serve any submissions providing reasons as to why the Commission should not dismiss his application by 5 March 2018. This letter stated that if Mr Sinclair failed to respond by 5 March 2018, his application for relief from unfair dismissal would be dismissed.

[13] To date, Mr Sinclair has not filed any material with the Commission.

[14] 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.

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

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

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Sinclair has failed to comply with the directions of the Commission to both file submissions in support of his application for an extension of time and in response to the s.399A application of Wormall. In addition, he did not to attend the non-compliance hearing. He has failed to provide any explanations for his failure to comply and attend. There have been six attempts by the Commission to get Mr Sinclair to engage since the telephone conversation on 15 February 2018. He has failed to respond to any of them. In these circumstances, I will exercise my discretion under s.399A(1)(a) and (b) and dismiss Mr Sinclair’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR600995>