Mr Ben Escott v Topshelf Carpet Laying Pty Ltd trading as Topshelf Carpet Laying

[2015] FWC 5245

[2015] FWC 5245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Ben Escott
v
Topshelf Carpet Laying Pty Ltd trading as Topshelf Carpet Laying
(U2014/16447)

COMMISSIONER STANTON NEWCASTLE, 17 SEPTEMBER 2015

Application for relief from unfair dismissal – applicant failed to comply with directions - respondent’s s.399A application – application for unfair dismissal remedy dismissed.

[1] On 17 December 2014, Mr Ben Escott made an application for remedy from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The respondent employer, Topshelf Carpet Laying Pty Ltd trading as Topshelf Carpet Laying (Topshelf Carpet), filed a jurisdictional objection to the application on the grounds that it had been filed late.

[2] Vice President Lawler dismissed the jurisdictional objection on 15 April 2015 and the matter was subsequently allocated to the Commission as currently constituted on 22 April 2015. The Commission’s file in this matter notes Mr Escott failed to comply with the Directions issued concerning the jurisdictional objection on the grounds that he was unaware he had to comply and he did not receive the Directions because he had changed his place of residence.

[3] Between 23 April and 6 May 2015, my Chambers made more than seven attempts to contact Mr Escott on his mobile telephone seeking his availability for a Directions Conference, a current address to send the notice of listing and confirmation of his contact details.

[4] A Directions Conference scheduled on 29 May 2015 was vacated at the request of Topshelf Carpet due to a pre-arranged medical appointment.

[5] The matter was subsequently relisted for Directions on 4 June 2015. Directions for the filing of evidence and witness statements were issued on 4 June 2015 and sent to Mr Escott’s nominated address. During the course of that Conference, the Commission carefully explained to Mr Escott what he was required to do and he confirmed on a number of occasions that understood what was required of him and indicated he would most likely prepare a short statement and possibly in point form only. The application was subsequently listed for hearing on 9 September 2015.

[6] On 4 June 2015, Mr Escott also sought a copy of Form 52 – Order Requiring Production of Documents (Form 52). My Chambers also explained to Mr Escott the requirements related to service.

[7] Mr Escott was due to file the material that he sought to rely upon in arbitration on 26 June 2015. He failed to comply. My Chambers made a number of attempts to contact Mr Escott on his mobile telephone.

[8] Contact was eventually made on 30 June 2015 when Mr Escott stated that he had not received a copy of the Directions or the notice of listing outlined to him during proceedings on 4 June 2015. Mr Escott claimed he had moved house again and requested the Directions and Form 52 be resent. He also acknowledged that he had placed his documents into a box and had not found it since moving house.

[9] Mr Escott was subsequently advised he was required to request an extension to the Directions and provide evidence of his new residential address.

[10] During the course of his conversation with my Chambers on 30 June 2015, Mr Escott stated he was due to commence a four-week overseas holiday and was not available for the hearing scheduled on 9 September 2015. He was advised to put the request in writing with a copy to Topshelf Carpet. There has been no response from Mr Escott.

[11] On 6 July 2015, Topshelf Carpet sought an Order that the application should be dismissed pursuant to s.399A on the grounds that Mr Escott has unreasonably failed to comply with the Directions issued by the Commission.

[12] On 10 July 2015, the Unfair Dismissal Case Management Team wrote to Mr Escott concerning the s.399A application. Mr Escott was directed to file submissions concerning his non-compliance by close of business on 24 July 2015. Mr Escott was further advised that in the event that he failed to comply with this direction, his application would be dismissed. Mr Escott failed to comply with those Directions.

Statutory context

[13] 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.

[14] I have considered the provisions of s.593 of the Act and given Mr Escott’s further non-compliance I propose to determine the application on the papers.

[15] It is a matter of evidence that Mr Escott has persistently failed to comply with the various Directions issued by the Commission concerning his application. He has been afforded ample opportunity to respond to the various Directions made but has repeatedly failed to do so.

[16] Mr Escott has an obligation to act diligently in the pursuit of his application. He has failed to establish any reasons or evidence to support his failure to comply with the most recent Directions concerning the s.399A application pressed by Topshelf Carpet.

[17] In all the circumstances of this matter, I am satisfied Mr Escott has unreasonably and repeatedly failed to comply with the various Directions that would in normal circumstances have afforded his application to proceed to arbitration in a rational and orderly way. He did so without any explanation. I propose to grant the application sought by Topshelf Carpet. The application for relief from unfair dismissal made by Mr Escott is dismissed pursuant to s.399A (1)(b) of the Act. An Order 1 giving effect to this decision will be issued contemporaneously with this decision.

COMMISSIONER

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