Mitchell Curtis v Suncorp

[2016] FWC 783

[2016] FWC 783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitchell Curtis
v
Suncorp
(U2015/8639)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] On 19 June 2015, Mr Mitchell Curtis made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Curtis’s employment had been terminated by Suncorp on 20 April 2015.

[2] The matter was the subject of conciliation however, the matter was not resolved.
Consequently, directions were issued and the matter was listed for a jurisdictional hearing on 4 September 2015.

[3] On 26 October 2015, a decision 1 to dismiss the jurisdictional objection was handed down by Commissioner Johns. Consequently, directions were issued and the matter was listed for an arbitration conference/hearing between 20 and 22 January 2016.

[4] Mr Curtis was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 30 November 2015.

[5] On 19 November 2015, Mr Curtis was called to enquire as to whether he would like to attend conciliation; a message was unable to be left. An email was then sent to parties offering conciliation prior to the arbitration conference/hearing. Mr Curtis telephoned the Fair Work Commission and consented to the matter being listed for conciliation.

[6] On 19 November 2015, Suncorp was called and informed that the matter had been listed for arbitration in January 2016. Suncorp advised that they will be requesting an adjournment to February 2016 and that they will obtain instructions in regards to attending conciliation and confirm with the Commission.

[7] On 20 November 2015, an attempt was made to call Mr Curtis to inform him that he must file his materials in support of his application by 30 November 2015; a voicemail was unable to be left. Mr Curtis returned the Commission’s call; he was informed that his materials were due on 20 November 2015. Mr Curtis informed the Commission that he had a new job and as such would prefer to try to settle the matter at conciliation. It was explained that the Commission is waiting on consent from Suncorp to list the matter for conciliation. Mr Curtis did not object to Suncorp making a request to adjourn the arbitration until February. Mr Curtis’ requirements as per filing on the merits were explained to him, he was directed to the Commission’s website for further assistance and told to call the Commission back if he had any issues understanding his requirements.

[8] On 25 November 2015, Suncorp emailed the Commission to request that arbitration be adjourned until mid-late February 2016.

[9] On the morning of 27 November 2015, an attempt was made to call Mr Curtis to reconfirm that he consents to the matter being adjourned to mid-late February 2016; a voicemail was unable to be left. The Commission then called Suncorp and a message was left to call back. Suncorp returned the call and requested that the matter be listed for conciliation, providing dates of Suncorp’s availability. Two more attempts were made that afternoon to call Mr Curtis; again voicemail’s were unable to be left.

[10] On 30 November 2015, Suncorp was called and informed that its adjournment request had been granted and that an amended notice of listing would be issued shortly. Suncorp was also informed that as this matter already went to conciliation prior to the extension of time hearing they would have to make a formal request for a second conciliation in writing. After noon the Commission then attempted to call Mr Curtis in relation to materials to confirm whether he was intending to file anything further, a voicemail was unable to be left. Later that afternoon Suncorp emailed the Commission to request an extension to file submissions until late January 2016 and to request that the matter be listed for a second conciliation.

[11] On 3 December 2015, Suncorp was called and informed that their request for an extension to file submissions had been granted and that the Commission was waiting to hear back from the conciliations team before listing the conciliation for the second week of January 2016.

[12] On 7 December 2015, a notice of listing was sent to the parties listing the matter for telephone conciliation on 19 January 2016. An attempt was made to call Mr Curtis to inform him the matter had been listed for conciliation and that the amended notice of listing had been sent to him via email and mail, a voicemail was unable to be left.

[13] On 11 December 2015, an amended notice of listing was sent to the parties for the arbitration conference/hearing. An attempt was made to call Mr Curtis to advise of the new hearing dates, a voicemail was unable to be left.

[14] On 12 January 2016, an attempt was made to call Mr Curtis to confirm his telephone number for conciliation; a voicemail was unable to be left.

[15] On 19 January 2016, the scheduled telephone conciliation could not take place as Mr Curtis failed to participate. Five calls were attempted to Mr Curtis’ mobile phone; voicemail’s were unable to be left.

[16] On 21 January 2016, Suncorp called the Commission and asked about the matter being dismissed due to the non-compliance of Mr Curtis. Suncorp was informed of the Commission’s procedure in such circumstances.

[17] On 21 January 2016, Suncorp filed a Form F1 and sought the dismissal of Mr Curtis’ application. Suncorp based their request on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the conciliation.

[18] On 21 January 2016, an attempt was made to call Mr Curtis; a voicemail was unable to be left. An email was then sent to Mr Curtis requesting that he contact the Commission.

[19] On 22 January 2016, Mr Curtis was sent correspondence informing him of Suncorp’s section 399A application. Mr Curtis was directed to file submissions and other documentary material in respect of Suncorp’s application by close of business, on 1 February 2016. Mr Curtis was advised that if he failed to comply with this direction, his application would be dismissed.

[20] Mr Curtis did not file any material with the Commission.

[21] 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.

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

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

[24] As Mr Curtis has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[25] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Curtis has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Curtis’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1   [2015] FWC 7380

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