Mr James Gillies v Printco (Aust) Pty Ltd
[2022] FWC 3208
•14 DECEMBER 2022
| [2022] FWC 3208 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr James Gillies
v
Printco (Aust) Pty Ltd
(U2022/8931)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 14 DECEMBER 2022 |
Application for an unfair dismissal remedy
This is an edited version of my decision delivered ex tempore and recorded in transcript on 6 December 2022. I ordered that the application be dismissed.[1]
There appears to be no appearance and no attendance from either party in relation to this application. My associate has, on several occasions, endeavoured to contact the applicant without success and the respondent has also not appeared.
There has been no application made for the dismissal of this matter because of a failure to comply with directions. In the circumstances, I consider that the most appropriate course is for me to determine this application on the basis of the material I have to hand.
Mr James Gillies was employed by the respondent, Printco (Aust) Pty Ltd, as a factory hand for the period between 18 October 2021 and the date on which his dismissal took effect on 12 August 2022.
Mr Gillies subsequently applied on 2 September 2022 for an unfair dismissal remedy. In that application, Mr Gillies does not set out in any particular detail the circumstances of his dismissal or why it is that he considers that his dismissal was unfair, except to say that he was made redundant in circumstances where it was not a true redundancy. He also contends that there was no consultation leading up to his redundancy.
The respondent filed an employer response to the unfair dismissal remedy application through its solicitors on 15 September 2022. In that response, the respondent takes issue with the nature of the dismissal and contends that the dismissal was a case of genuine redundancy, although the details of the response do not, in terms, address the statutory meaning of genuine redundancy; seem to concede that there was no, or at least inadequate, consultation; and do not address the question whether it would have been reasonable in the circumstances to redeploy.
The matter was listed for a conciliation conference before a staff member of the Commission on 29 September 2022. The conference was to be conducted by telephone. The respondent attended but the applicant did not. According to the file note made by the staff conciliator, the conference was scheduled for 9:15am. The conciliator called the applicant on the telephone number listed in his application between 9:15am and 9:35am on seven occasions, but there was no answer. The conciliator left voice messages for the applicant asking the applicant to return the calls. The conciliator also sent an email to the applicant requesting that the applicant answer his phone or return the calls. No response was given.
After the application was allocated to my chambers I issued direction on 6 October 2022, setting out a number of steps that the parties were required to take in order to prepare the matter for hearing, taking into account the objection raised by the respondent alleging the dismissal was a case of genuine redundancy. Those directions required the respondent to file its material first.
Shortly after issuing the directions, by email to my chambers of 6 October 2022, the respondent, through its solicitors, advised that the respondent had decided to withdraw its jurisdictional objection in relation to the genuineness of the redundancy, but maintained its position that the dismissal of the applicant was not in any way unlawful, by which I take the respondent to mean unfair.
Consequently, I issued varied directions and I vacated the directions that had earlier been made on 6 October. I required the applicant to file his materials in support of his application, that is an outline of submissions and the statements of any evidence and any other document on which he intended to rely, by 28 October 2022. I directed the respondent to similarly file submissions, statements and documents on which it intended to rely by 5:00pm on 18 November 2022 and I allowed the applicant to file any reply material by 5:00pm on 25 November 2022. The matter was fixed by hearing commencing at 10:00am on 6 December 2022, which is today.
The applicant has not filed any material pursuant to the directions that I had made, nor has the respondent filed any materials that it was required to file in support of its position. I am therefore left with the bare allegations that are set out in the application and in the employer response.
My associate has endeavoured to contact the applicant, both in writing and by telephone, on several occasions following the applicant's failure to comply with directions. All of those endeavours were to no avail and there has been no communication from the applicant. The applicant has not contacted my chambers with any explanation for his failure to comply with the directions; nor has the applicant made any request that he be allowed further time to file materials; nor has he filed any notice of discontinuance, despite communications with him suggesting that if he did not intend to press his application, he should do so either by filing a notice or by communicating his intention not to proceed with his application to my chambers.
For the respondent's part, several attempts were made to obtain an explanation for the respondent's failure to comply with my directions and the only communication that has been received is from solicitors for the respondent by email of 1 December 2022, which was to the effect that, on the basis that the applicant did not attend the conciliation conference without explanation and did not file and serve any material, the respondent has proceeded on the basis that the applicant has decided not to pursue his claim.
Such an assumption, particularly one made by solicitors, is without foundation. Solicitors practising in this area ought to be aware of the terms of section 399A, which deals expressly with the steps that may be taken in relation to a failure to attend a conference conducted by the Commission or a failure to comply with directions or orders made by the Commission. Those consequences are that there can be a dismissal of the application, but only on application by the employer. No such application has been made. Thus, to assume – as the respondent’s solicitors have done - that the applicant had decided to discontinue his claim without it being dismissed and without him filing a notice of discontinuance or indicating that he intended to discontinue is, to put it mildly, inattentive to their duty to the client.
Nonetheless, I will determine the merits of the application on the basis of the material available to me. Given that the respondent does not press its claim that the dismissal was a case of genuine redundancy, I am satisfied the dismissal was not a case of genuine redundancy.
The respondent does not suggest that it is a small business and so the question of whether the dismissal was consistent with the Small Business Fair Dismissal Code does not arise. There does not appear to be any dispute that the applicant is a person who has been dismissed and there is no question that the application made by Mr Gillies was one made within the statutory time period of 21 days following the day on which his dismissal took effect. That leaves for consideration the question whether the dismissal was harsh, unjust or unreasonable.
The matters that the Commission is required to take into account in assessing whether a dismissal was harsh, unjust or unreasonable are set out in s 387. The difficulty with this application is that the bare application does not direct any attention to any of the matters that I am required to take into account, save for the allegation that the redundancy was, in effect, not genuine and that there was a failure to consult. That allegation is not supported by any material filed by the applicant and the applicant is not here to give evidence about the circumstances of his dismissal.
The matters are contested, as is evident from the respondent's employer response and the communication with my chambers of 6 October 2022. Similarly, the respondent has not filed any material in support of the bare allegations that are made in the employer response and certainly has not filed any material addressing the statutory criteria relevant to the assessment of whether a dismissal is harsh, unjust or unreasonable. Moreover, it has not filed any evidentiary material from any person employed by the respondent who could give relevant evidence about the matters that I need to take into account.
In these circumstances, I am left with contested bare allegations which are not sufficient for me to be satisfied about any of the matters set out in section 387. The only reasonable conclusion that can be reached is that I am not satisfied the dismissal, on the material available to me, was harsh, unjust or unreasonable.
Having regard to that conclusion, it cannot be concluded that the applicant has been unfairly dismissed. The appropriate course, therefore, is to dismiss the applicant's unfair dismissal remedy application.
I therefore order that the application made by Mr James Gillies in U2022/8931 be dismissed.
A written order was issued on 6 December 2022.[2]
DEPUTY PRESIDENT
Hearing details:
2022
Melbourne
6 December
[1] PR748614
[2] PR748614
Printed by authority of the Commonwealth Government Printer
<PR748615>
0
0
0