Mr George Stipis v Active Towing Sydney Pty Ltd. T/A Active Towing

[2018] FWC 6137

[2018] FWC 6137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr George Stipis

v

Active Towing Sydney Pty Ltd. T/A Active Towing

(U2018/6469)

COMMISSIONER RIORDAN SYDNEY, 3 OCTOBER 2018

Application for an unfair dismissal remedy.

1. On 22 June 2018, Mr George Stipis (the Applicant) lodged an application pursuant to section 394 of the Fair Work Act, 2009 (the Act), for an unfair dismissal remedy against Active Towing Sydney Pty Ltd t/a Active Towing (the Respondent).

1. The matter was listed for Conference and Directions via teleconference on 16 August 2018. The matter was unable to be resolved at the Conference.

1. The parties were advised verbally at the conclusion of the teleconference of the dates for filing of material and that the Directions would also be issued to the parties directly later that same day. The Applicant was specifically asked for his current mailing address on the basis that he was temporarily away from his normal residence.

1. Formal notification of the hearing date and Directions were issued to the parties at 11:45am on 16 August 2018. The Directions were issued via email and registered post.

1. The Applicant failed to comply with the Directions issued by the Fair Work Commission (FWC).

1. The Applicant was sent an email on 24 September 2018, advising that he had failed to comply with the Directions and was requested to provide a written response as to why he had failed to do so.

1. On 27 September 2018, the Applicant responded:

“Dear Stevie Smith

I have just returned from living in Jindabyne where I had very limited internet access. I didn’t read the email fully I thought I only had to come into your office on the 9 October. I am waiting for solicitor to call me back and I would like to carry on with the case.
Kind regards
George Stipis”

1. I find that the Applicant’s response does not provide a satisfactory reason for his non-compliance with the FWC’s Directions. The Applicant was made aware of the Directions verbally, by email and by post.

1. Section 399A of the Act provides the following:

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.

(my emphasis)

1. Although the Applicant advised that he did not read the email issued by the FWC fully, the Applicant was also sent a copy of the Notice of Listing with the hearing details and Directions via registered post. I have tracked the Item Number through Australia Post and received confirmation that the letter was delivered to the Applicant on 17 August 2018 at 8.56am.

1. Even allowing for the Applicant’s unreliable email service, the Applicant appears to have simply ignored the written correspondence sent to him via Australia Post. I find that as a result of the Applicant’s inaction he has breached s.399A(1)(b) of the Act.

1. Based on the Applicant’s failure to comply with the Directions issued by the FWC, I have decided to dismiss the application under s.399A of the Act.

1. The application is dismissed.

1. I so Order.

COMMISSIONER

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