Mr Jeremy Johnson v AJ Water & Leak Detection

[2019] FWC 3325

[2019] FWC 3325

FAIR WORK COMMISSION

DECISION

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

Mr Jeremy Johnson
v
AJ Water & Leak Detection
(U2019/2344)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 MAY 2019

Application for an unfair dismissal remedy.

[1] On 4 March 2019, Mr Jeremy Johnson made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Johnson said he was notified his employment had been terminated by AJ Water & Leak Detection (AJ Water) on 1 March 2019.

[2] The matter was listed for conciliation on 2 April 2019. Two days after the conciliation, Mr Johnson wrote to the conciliator and advised “[a]fter a meeting with our solicitor today, we will not be accepting the proposal from AJ Water.” The matter was then referred for further programming.

[3] On 10 April 2019, a Notice of Listing was sent to the parties scheduling the matter for Arbitration Conference/Hearing on 18-19 June 2019. Directions were also issued for the filing of material. Mr Johnson was directed to file his material by no later than noon on 29 April 2019 and AJ Water was to file its material by no later than noon on 20 May 2019.

[4] No material was received from Mr Johnson by noon on 29 April 2019.

[5] On 29 and 30 April 2019, attempts were made by the Commission to contact Mr Johnson regarding his overdue material. Voicemail messages were left on each occasion seeking a return call. Email correspondence was also sent to Mr Johnson on these two days, with the latter email noting that if Mr Johnson did not contact the Commission by 4.00pm on 1 May 2019, the matter would be listed for a non-compliance hearing.

[6] On 2 May 2019, a Notice of Listing was sent to the parties via email and post, scheduling the matter for a non-compliance hearing at 3.00pm the following day. Also on 2 May 2019, an attempt was made to telephone Mr Johnson to advise him of the non-compliance hearing taking place the following day, however this was again unsuccessful and a voicemail message was left. An SMS message was then sent to Mr Johnson seeking a return call. The Australia Post tracking ID indicates the Notice of Listing sent via express post to Mr Johnson was delivered at 7.37am on 3 May 2019.

[7] The non-compliance hearing proceeded before Deputy President Colman on 3 May 2019. Mr Johnson could not be contacted. AJ Water made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Johnson’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted AJ Water’s oral application.

[8] Following the non-compliance hearing, correspondence was sent to Mr Johnson’s email and postal addresses advising him of AJ Water’s s.399A application. Mr Johnson was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4.00pm on 10 May 2019. The correspondence also noted that if the Commission did not receive a response, Mr Johnson’s application for relief from unfair dismissal may be dismissed. A review of the Australia Post tracking ID indicates the letter was delivered to Mr Johnson on 9 May 2019.

[9] To date, Mr Johnson has not filed any material with the Commission.

[10] 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.

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

[12] As Mr Johnson did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing his application and attending the conciliation, Mr Johnson has failed to actively prosecute his case and has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the non-compliance hearing on 3 May 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Johnson’s application. This ends his unfair dismissal application.

[14] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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