Mr Jamie Llewell v Downer EDI Mining Pty Ltd

[2014] FWC 476

[2014] FWC 476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jamie Llewell
v
Downer EDI Mining Pty Ltd
(U2013/13106)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 23 JANUARY 2014

Summary: unfair dismissal application - jurisdictional objections - failure to comply with directions and failure to attend hearing - s.399A.

[1] On 2 September 2013, Mr Jamie Brett Llewell (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to the termination of his employment which took effect on 8 July 2013. The Applicant’s employer had been Downer EDI Mining Pty Ltd (“the employer”).

[2] The application was made some 35 days outside the requirements of s.394(2)(a) of the Act.

[3] Correspondence which accompanied the Applicant’s application indicates that he was made redundant by his employer as a result of downsizing of its operations at the Christmas Creek mine.

[4] In its employer’s response to the application, the employer contended that not only was the application out of time, there had been a genuine redundancy for the purposes of s.389 of the Act.

[5] A conciliation conference, set down for 9 October 2013, did not take place in relation to the application because, it seems, the Applicant did not personally appear.

[6] It appears that the Applicant has had some stressful personal incidents in his life and he provided on 2 November 2013 a document from a purported registered psychologist attesting to the same. The document stated that the Applicant’s circumstances “made it more difficult for [him] to seek immediate guidance with regards to the employment related issues.” The document referred to a traumatic incident in May 2013 which the Applicant had witnessed. This does not accord with the e-mail by the Applicant which referred to that incident having occurred in July 2013.

[7] Possibly, this is a matter that may have some bearing on his application.

[8] Directions were issued on 8 November 2013. The directions included a timetable in respect of which the Applicant and the employer were required to do certain things. The employer duly responded in some considerable detail.

[9] The Applicant however did not provide any materials by the due date, which was 6 December 2013.

[10] On 10 December 2013, the Applicant was invited to provide his materials by midday on Thursday, 12 December 2013, or face the risk of an application under s.399A of the Act. On that same day, a telephone call was made to the Applicant’s landline, and a person purporting to be the Applicant’s mother confirmed the Applicant’s mobile telephone number and indicated that she would pass on advice in relation to the extension of time for providing submissions. A voice message was subsequently left on the Applicant’s mobile telephone advising him to urgently check his e-mails as his submissions were overdue and he had an extension until midday 12 December 2013.

[11] The Applicant did not file any materials by this stipulated time and date. Nor was any indication of any kind received from the Applicant.

[12] The Applicant was contacted on 12 December 2013, the day on which his submissions were due. He advised at that time that he could not speak and requested to be called back in a few hours time. The Applicant was subsequently telephoned again later that day. He did not answer his mobile phone. The message was left on his answering service advising him of his circumstances.

[13] The Applicant did not contact chambers until 16 December 2013. The Applicant explained at that time that he had been at a funeral and that the unfair dismissal matter was becoming complicated, including because he had received income protection payments, which he had been advised by a lawyer may affect his claim. The Applicant was otherwise advised procedurally about the situation in which he found himself and that he was likely to be exposed to an application under s.399A of the Act.

[14] On 16 December 2013, the employer filed an application under s.399A(1)(b) of the Act.

[15] This application was listed for hearing on 13 January 2014.

[16] At the time of the hearing the employer and its witnesses duly appeared. The Applicant did not appear. Various efforts were made to contact him by telephone. One such call was taken by a person purporting to be the Applicant’s mother who asked if the call concerned the unfair dismissal matter and indicated that her son was not available at that time.

[17] Following the hearing, a further e-mail was sent to the Applicant (and express posted to his home address) advising him of the hearing that day, his failure to attend and indicating also that if I did not hear from him by Thursday 16 January 2014 I would act on the materials before me in respect of the application under s.399A of the Act, which would have the effect of seeing his application dismissed.

[18] I note also that in the course of the hearing in which the employer made an appearance, the employer amended its original application under s.399A(1)(b) in order to extend its scope to unreasonable conduct in respect of s.399A(1)(a) of the Act as well.

[19] The Applicant did not respond to the e-mail of 13 January 2014. Nor had he contacted Chambers by the date of this decision.

Conclusion

[20] In my view, the Applicant has been afforded an opportunity to present his case, perhaps abundantly so. But he has not availed himself of that opportunity. I must therefore act on the materials and on the basis of the circumstances before me.

[21] I can only conclude that the Applicant, in the context of s.399A(1)(a) and (1)(b) of the Act, has acted unreasonably in relation to his failure to respond to the directions timetable along with his failure to appear at the hearing on 13 January 2014.

[22] Because I have so found, the application is dismissed. And order to this effect will issue.

SENIOR DEPUTY PRESIDENT

Appearances:

The Applicant did not appear

Mr J. Goos for the Respondent

Hearing details:

Brisbane

2014

13 January

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