Mr Cameron Green v Cape Australia Holdings Pty Ltd T/A Cape Australia

[2018] FWC 3279

[2018] FWC 3279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Cameron Green
v
Cape Australia Holdings Pty Ltd T/A Cape Australia
(U2018/3347)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 8 JUNE 2018

Application for an unfair dismissal remedy

[1] Via his representative Unfair Dismissals Australia Pty Ltd, on 29 March 2018 Mr Cameron Green (the applicant) made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act). Mr Green claims that his employment had been terminated by Cape Australia Holdings Pty Ltd (the respondent employer) on 9 March 2018 with the dismissal taking effect from that day.

[2] The respondent employer filed a response in the Commission on 12 April 2018 contesting the application.

[3] The matter was listed for conciliation before a Commission-appointed conciliator on 2 May 2018. The applicant and his representative, and the respondent employer, were advised of the conciliation by letter dated 27 April 2018. The conciliation did not occur due to the non-participation of the applicant despite the presence of the respondent employer and the applicant’s representative.

[4] The applicant and his representative, and the respondent employer, were informed by letter dated 2 May 2018 that he needed to contact the Commission within two working days if he sought conciliation of his application. No communication was received from the applicant. By email dated 4 May 2018 the applicant’s representative sought a rescheduling of the conciliation.

[5] The application was listed for a directions hearing before me on 30 May 2018. The applicant and his representative, and the respondent employer, were advised of this hearing via a notice of listing dated 22 May 2018.

[6] By email dated 22 May 2018 at 3.41pm addressed to my chambers, the applicant communicated as follows “sorry is this still going ahead now? thanks cam”.

[7] By email dated 23 May 2018 the Commission advised the applicant and his representative, and the respondent employer, that the directions hearing for 30 May 2018 would be proceeding.

[8] On 29 May 2018 the applicant’s representative filed a Notice of representative ceasing to act.

[9] By email dated 30 May 2018 the Commission reminded the applicant and his representative, and the respondent employer, that the directions hearing scheduled for later that day 30 May 2018 would be proceeding.

[10] There was no appearance by the applicant at the directions hearing at 2.15pm ACST 30 May. I directed that the matter be relisted for 1.30pm (ACST) 1 June 2018.

[11] The applicant and the respondent employer were advised of the relisted directions hearing via a notice of listing dated 30 May 2018.

[12] There was no appearance by the applicant at the relisted directions hearing on 1 June 2018. I further directed that the matter be relisted for a non-compliance hearing at 1.30pm (ACST) 5 June 2018.

[13] The applicant and the respondent employer were advised of the non-compliance hearing via a notice of listing dated 1 June 2018. The notice of listing provided as follows:

“PLEASE NOTE: No appearance was made by the Applicant at the proceedings of 30 May 2018 and 1 June 2018. The Applicant is at risk of the matter being dismissed by the Fair Work Commission for want of prosecution.”

[14] There was no appearance by the applicant at the non-compliance hearing I conducted on 5 June 2018. At that hearing the respondent employer made an oral application pursuant section 399A of the FW Act that the matter be dismissed due to Mr Green’s failure to attend conferences and hearings conducted by the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the employer’s oral application. I made the following directions:

1. On 5 June 2018 the respondent employer made an oral application to the Commission pursuant section 399A of the FW Act that the matter be dismissed due to Mr Green’s failure to attend conferences and hearings conducted by the Commission. The grounds of the application were the applicant’s non-attendance at Commission direction hearings on 30 May 2018, 1 June 2018 and a Commission non-compliance hearing on 5 June 2018. The respondent employer also noted that the applicant had not attended a conciliation conference which had been scheduled for 2 May 2018. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted the employer’s oral application;

2. The applicant is provided a period of 48 hours, that is by 1.30pm ACST Thursday 7 June 2018 to file written submissions and documentary evidence with the Commission in response to the respondent employer’s section 399A application;

3. If the Commission does not receive a response by the aforementioned time and date, the Commission will consider and determine the respondent employer’s application. The Commission will do so on the papers, without further hearing or notice. The applicant is again put on notice by the Commission that he is at risk of his application being dismissed by the Fair Work Commission for want of prosecution. If no response is provided by the aforementioned time and date the application will be dismissed.

4. The respondent employer, having made oral submissions in support of its application at the hearing on 5 June 2018, is not directed to file written submissions, but may elect to do so, by the aforementioned date and time.

[15] Mr directions of 5 June 2018 were sent by email to both Mr Green and the respondent employer. They were also sent by express post to Mr Green.

[16] The aforementioned 48 hour period has expired. To date, Mr Green has not filed any material with the Commission.

[17] Section 399A of the FW 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.

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

[19] As Mr Green did not file any material in opposition to the application to dismiss, I will determine the respondent employer’s application on the papers without further hearing.

[20] The power to dismiss an application if non-attendance or non-compliance was unreasonable is discretionary. Mr Green has failed to attend multiple hearings on his application despite prior notice and numerous attempts by the Commission to contact him. Other than engaging a representative to lodge his application and his email of 22 May 2018 (which was responded to), Mr Green 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 section 399A and dismiss Mr Green’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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