Mr David William Spencer v Australian Linehaul Services

[2022] FWC 955

[2022] FWC 955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr David William Spencer
v

Australian Linehaul Services

(U2022/2270)

COMMISSIONER WILSON MELBOURNE, 26 APRIL 2022

Application for an unfair dismissal remedy

1. On 21 February 2022 Mr David William Spencer (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Spencer stated in the F2 filed on this date that his employment had been terminated by Australian Linehaul Services (the Respondent) on 1 February 2022.

1. The Respondent filed an F3 response on 15 March 2022. The Respondent stated in the F3 that the Applicant had not been terminated but had resigned as he was not vaccinated and could not work. It specified that this resignation had occurred on 13 October 2021, which placed the application out of time and raised a jurisdictional objection on this ground.

1. The matter was allocated to Commissioner Wilson for arbitration who determined that the merits and the jurisdiction of this application would be determined together. This was based on the inextricability of the questions of the date of termination, whether the application was lodged out of time, and whether the employment ended via resignation of dismissal.’

1. Directions were issued on 18 March 2022. Mr Spencer was directed to file an outline of argument of the merits of the case, a signed and dated statement of evidence for any witness to be called in relation to the merits of the case, a copy of any document relied on, and a document list by 4.00PM 1 April 2022.

1. Mr Spencer did not comply with this direction. On 4 April 2022 correspondence was sent to Mr Spencer from the Commissioner’s chambers indicating his failure to file placed him at risk of being listed for a non-compliance hearing and that he was required to take steps urgently to file his materials. On that same day, three calls were made to the Applicant by chambers. The calls were not picked up, and three messages were left noting non-compliance with Fair Work Commission directions and requesting contact be made with chambers as a matter of urgency.

1. On 5 April 2022 the matter was listed for a non-compliance hearing before Commissioner Wilson on 13 April 2022 due to the Applicant’s failure to comply with directions for filing.

1. At the time of the listing for the non-compliance hearing, three calls were made to Mr Spencer with messages left specifying his urgent attendance was required. However, Mr Spencer did not attend the non-compliance hearing. On that date the representative for Australian Linehaul Services made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Spencer had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Rules 2009 and accepted Australian Linehaul Services’ oral application.

1. On 14 April 2022, Mr Spencer was sent correspondence informing him of the Respondent’s s.399A application. Mr Spencer was directed to file submissions and other documentary material in respect of Australian Linehaul Services’ application by 4.00PM 20 April 2022. Mr Spencer was advised that if he failed to comply with this direction, his application would be dismissed.

1. 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.

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

1. On 21 April 2022 correspondence was received in chambers indicating that the Respondent corporation had been placed in liquidation on 20 April 2022 and advising that the Commission provide information to the appointed liquidators regarding any claims held against the company by way of ongoing matters before the Fair Work Commission.

1. As at this point in time no response had been received from the Applicant by the deadline for reply to the s.399A application, no contact was made with the liquidators.

1. Based on the lack of a reason having been given for the Applicant’s failure to file or for his non-attendance at the non-compliance hearing, I am satisfied that Mr Spencer has unreasonably failed to attend and unreasonably failed to comply with directions.

1. After considering all the material, Mr Spencer’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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