Mr Cameron Weaver v Port City Air Conditioning Pty Ltd

[2016] FWC 4798

[2016] FWC 4798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Cameron Weaver
v
Port City Air Conditioning Pty Ltd
(C2016/1279)

COMMISSIONER SAUNDERS NEWCASTLE, 3 AUGUST 2016

Application to deal with contraventions involving dismissal – application dismissed

[1] Mr Cameron Weaver made a general protections application (Application) in relation to his dismissal by Port City Air Conditioning Pty Ltd (Port City Air). Mr Weaver’s Application was received by the Fair Work Commission (Commission) on 1 June 2016.

[2] Prior to any conciliation, Port City Air elected for the matter to proceed to an out of time hearing in connection with its contention that the Application was made more than 21 days after Mr Weaver’s dismissal took effect.

[3] On 8 July 2016, a letter was sent by the Commission to the parties, notifying them that they were each required to file and serve an outline of argument in relation to the extension of time issue and any statements of evidence by noon on Friday, 15 July 2016 and that a hearing would be conducted by telephone on Monday, 18 July 2016. A Notice of Listing was sent by the Commission to the parties on 11 July 2016 restating the requirements for documents to be filed by noon on Friday, 15 July 2016 and providing a time for the hearing – 2:00pm AEST Monday, 18 July 2016.

[4] At 10:51am on Thursday, 14 July 2016 my Associate wrote to the applicant, his solicitor, and the respondent, asking them to confirm their attendance at the telephone hearing and reminding them that documents were due to be filed by noon on Friday, 15 July 2016.

[5] On Friday, 15 July 2016 the respondent’s representative filed and served its outline of argument and a witness statement by Mr Daine Smith. No documents were filed or served by or on behalf of Mr Weaver.

[6] On the afternoon of Friday, 15 July 2016 the applicant’s solicitor, Ms Sarah Lock, called my Associate to advise they had not been able to get in contact with Mr Weaver and had not been able to obtain instructions from him, so she had made the decision to lodge a Form 54 – Notice Ceasing to Act. Ms Lock sent an email to this effect to my chambers after the telephone call with my Associate. This email copied in Mr Weaver and the respondent, attached a Form 54 and stated that they “have informed Mr Weaver that is it now his duty to inform the Fair Work Commission as to whether he wishes to continue with the matter or not.”

[7] An email was sent to my chambers from the respondent’s solicitor, Ms Eloise Pawley, copying in Mr Weaver at 2:44pm on Friday, 15 July 2016, advising that they act for the respondent and confirm their client’s attendance at the telephone hearing. Upon receiving the Form 54 from Ms Lock the respondent’s solicitor stated that they had sent a copy of the materials filed by the respondent to Mr Weaver.

[8] On the afternoon of Friday, 15 July 2016 my Associate wrote to Mr Weaver via email and also attempted to contact him by telephone, leaving two voicemail messages in relation to his failure to comply with the directions made on 8 July 2016 and to advise him that the telephone hearing at 2:00 pm Monday, 18 July would be proceeding, and failure to appear may result in his application being determined in his absence.

[9] On the morning of Monday, 18 July 2016 my Associate attempted to contact Mr Weaver by telephone again – however this time she was not able to leave a voicemail message and was advised that the telephone number had been disconnected. She followed up this call with another email at 9:26am to Mr Weaver advising that the hearing via telephone was going ahead at 2:00pm that afternoon and he should dial into the telephone conference system to participate. She again advised Mr Weaver that failure to appear could result in his application being decided in his absence.

[10] At 2:00pm on Monday, 18 July 2016, the matter came on for hearing by telephone. Mr Daine Smith appeared on behalf of Port City Air. There was no appearance by or on behalf of Mr Weaver. I decided that as Mr Weaver had only recently had his representative cease to act on his behalf that I would afford him an opportunity to provide an explanation as to why he did not appear at the hearing on 18 July 2016.

[11] A letter dated 18 July 2016 was emailed to both Mr Weaver and Port City Air, and sent via registered post to the address Mr Weaver had provided to the Commission. 1 The letter stated that Mr Weaver had failed to attend the telephone hearing at 2:00pm on 18 July 2016 and that the Commission had attempted to contact him on numerous occasions via email and telephone concerning the hearing. Mr Weaver was given until 4:00pm on Monday, 25 July 2016 to inform the Commission of his reasons for not appearing at the telephone hearing.

[12] This letter was returned to the Commission by Australia Post on Friday, 29 July 2016 with a ‘return to sender’ sticker attached which marked ‘left address/unknown’ as the reason for its return.

[13] Mr Weaver has not made any contact with my Associate at any time since the hearing on 18 July 2016.

[14] In the circumstances, I am satisfied that Mr Weaver was notified of the hearing on 18 July 2016 and was given an opportunity to explain why he did not participate in that hearing. I am also satisfied that Mr Weaver has unreasonably failed to (a) comply with directions made by the Commission on 8 July 2016 and (b) participate in a hearing held by the Commission on 18 July 2016 in relation to his Application. I therefore exercise my discretion pursuant to section 587(1) of the Fair Work Act 2009 (Cth) to dismiss Mr Weaver’s Application.

COMMISSIONER

Appearances:

No appearance on behalf of the applicant.

Mr D Smith, director, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

July, 18.

 1   50081 Bruce Highway Calliope, QLD 4680.

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