Mitchell Iredale v BCI Media Group Pty Ltd T/A BCI Media Group

[2017] FWC 4083

[2017] FWC 4083

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitchell Iredale
v
BCI Media Group Pty Ltd T/A BCI Media Group
(U2017/6599)

COMMISSIONER MCKENNA SYDNEY, 4 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 20 June 2017, Mitchell Iredale (“the applicant”) made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy concerning his dismissal by a respondent he named as “BCI Australia”. (The name of the respondent was subsequently amended by me to reflect its correct name - BCI Media Group Pty Ltd T/A BCI Media Group (“the respondent”)).

[2] The file record indicates that the application was, in accordance with usual processes, listed for conciliation, by telephone, before a Fair Work Commission conciliator. Moreover, an electronic reminder message was subsequently sent to the parties concerning that conciliation listing.

[3] Correspondence from staff of the Commission was sent to the parties on 6 July 2017 noting that the conciliation did not proceed because of the unavailability of the applicant, and also noting that if the parties wished to proceed to conciliation a request should be made within two working days indicating availability for a further conciliation listing. The correspondence further noted that if communication was not made within two days, the matter would be referred directly for arbitration.

[4] For its part, the respondent, though solicitors, wrote as follows:

“Thank you for your correspondence today.

The Respondent has a strong preference that the matter not be re-listed for conciliation.

The Notice of Listing was clearly issued to all parties and there is considerable inconvenience and time already expended by the Respondent in this matter.

The applicant was not indisposed or unwell but rather, he was at work. The Respondent views this as an unsatisfactory explanation for his non-attendance in his matter today.

Should the matter ultimately be re-listed by FWC for a conciliation, the Respondent will be unavailable on dates 12^th & 13^th July.” (Underlining in original)

[5] There is nothing in the file record to indicate that the applicant made any contact with the Commission with a view to seeking a further conciliation date, in circumstances where the conciliation that had been scheduled for 6 July 2017 did not proceed due to his unavailability.

[6] On 20 July 2017, the application was allocated to me. I caused correspondence to be sent to the parties, together with a notice of listing which included the directions for hearing. Relevantly, the notice of listing indicated the application was listed before me for a conference and/or directions proceeding, by telephone, on 26 July 2017; directed that the applicant file and serve materials his first round of materials by no later than 5.00pm on 3 August 2017; and included details about the arbitration conference/hearing proceeding listed for 24 August 2017.

[7] There was no appearance by or on behalf of the applicant in the conference and/or directions proceeding that was listed before me on 26 July 2017, nor any communication before or since concerning that non-attendance. The respondent, through its solicitor, made an application on 26 July 2017 pursuant to s.399A of the Act that the unfair dismissal application should be dismissed, given the failure of the applicant to attend the proceeding that day.

[8] In circumstances where it was unclear why there was no appearance by or on behalf of the applicant, I caused correspondence dated 26 July 2017 to be issued which read:

“Dear Mr Iredale

U2017/6599 Iredale, Mitchell v BCI Australia – s.394

I refer to the above matter and the Notice of Listing which issued on 20 July 2017.

Commissioner McKenna has instructed me to note the following:

1. There was no appearance by you in the telephone Conference and/or Directions scheduled at 11.00am today, 26 July 2017.

2. The directions set out in the Notice of Listing require you to file and serve materials in relation to your application by no later than 5.00pm on Thursday, 3 August 2017.

The respondent’s representative today made an application pursuant to s.399A of the Fair Work Act 2009 that your application for unfair dismissal remedy be dismissed. Section 399A of the Act provides as follows:

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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.

While the Commissioner did not dismiss your application today, she has instructed me to advise you to take notice that if you do not file and serve materials in accordance with the directions your application may be dismissed without further notice to you.” (Bold in original)

[9] The applicant has now failed to file and serve materials in accordance with the directions and the respondent’s solicitor has today renewed, in writing, the earlier s.399A application that the applicant’s application for an unfair dismissal remedy be dismissed.

Consideration

[10] Following upon the applicant’s failure to attend the conference and/or directions proceeding before me on 26 July 2017, the applicant has now also failed to comply with a direction in relation to the filing and service of materials.

[11] No communication has been received by my office concerning the applicant’s non-attendance at the proceeding on 26 July 2017. The applicant has not made any formal or informal application seeking a variation of the directions; and he has failed to comply with a direction without any communication to my office as to such failure.

[12] So far as the respondent’s application pursuant to s.399A of the Act is concerned, I am satisfied the applicant has, within the meaning of s.399A(1)(a), unreasonably failed to attend a conference conducted by the Commission, and has also, within the meaning of s.399A(1)(b), unreasonably failed to comply with a direction of the Commission. As such, an order dismissing the applicant’s application for an unfair dismissal remedy issues with these reasons.

[13] As a corollary, the extant directions requiring the filing and service of materials on 17 and 21 August 2017 are vacated. A cancellation notice concerning the arbitration conference/hearing that had been scheduled for 24 August 2017 will also separately issue.

[14] The proceedings are concluded.

COMMISSIONER

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