Mr Joshua Devine v Rexel Holdings Australia T/A Rexel

[2017] FWC 5476

[2017] FWC 5476

FAIR WORK COMMISSION

DECISION

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

Mr Joshua Devine
v
Rexel Holdings Australia T/A Rexel
(U2017/7158)

COMMISSIONER HUNT BRISBANE, 23 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] On 4 July 2017, Mr Joshua Devine made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Devine’s employment was terminated by Rexel Holdings Australia T/A Rexel (Rexel) on 14 June 2017.

[2] The matter was listed for conciliation before a staff conciliator on 21 July 2017, to which no attendance was made by Mr Devine. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Devine was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, Monday 21 August 2017. Mr Devine did not comply with this direction.

[4] The matter was listed for non-compliance hearing on 25 August 2017 before Commissioner Bissett. Consequently, Mr Devine was allowed until 4:00pm Monday 28 August 2017 to file his material.

[5] On 28 August 2017, Mr Devine filed an Outline of Argument only. This matter was allocated to my Chambers on 3 October 2017.

[6] On 4 October 2017, I directed Mr Devine to file a witness statement in support of his application by no later than 4:00pm, 11 October 2017. After failing to file any material by that time, I allowed Mr Devine until 4:00pm, 16 October 2017 to file the requested witness statement. Again, Mr Devine did not file any further material.

[7] The matter was listed for a Member Assisted Conference before Commissioner Simpson on 20 October 2017, which Mr Devine failed to attend. Attempts to contact Mr Devine by telephone were made, and no response was received to a voicemail left by Commissioner Simpson’s Associate.

[8] Following the conference on 20 October 2017, which Mr Devine did not attend, Rexel made an application to my Chambers that the matter be dismissed as Mr Devine had failed to comply with the direction of the Fair Work Commission. Rexel stated they had concerns that further non-attendance by Mr Devine would occur at the substantive hearing listed for 23 October 2017, to which they had fully prepared for, including attendance by Ms Vanessa Herron, Human Resources Business Partner who would travel from Perth to Brisbane. This application was copied to Mr Devine.

[9] On 20 October 2017, after Rexel clarified in writing that it sought that the application be dismissed pursuant to s.399A of the Act, the Parties were sent correspondence informing them the matter would be listed for a hearing by telephone on 23 October 2017 to determine Rexel’s application for the matter to be dismissed. The listing for the substantive hearing was vacated. Parties were asked to confirm appearances and provide telephone contact details. It is noted no response was received from Mr Devine.

[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] At noon today, Ms Herron and Mr Norris, General Manager of Rexel represented Rexel at the telephone hearing. Numerous attempts were made by my Associate to contact Mr Devine on his mobile phone. The calls went to his voicemail.

[12] At the hearing, Ms Herron pressed Rexel’s application that Mr Devine’s application be dismissed pursuant to s.399A(1)(a) and (b) of the Act. I informed Rexel that I would reserve my decision and promptly issue a written decision.

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Devine has failed to respond to the numerous attempts by the Commission to contact him. He has shown no willingness to prosecute his case and he has provided no explanation for his failure to comply with directions. In these circumstances, I will exercise my discretion under both s.399A(1)(a) and (b) and dismiss Mr Devine’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

Appearances:

Ms V. Herron on behalf of the Respondent.

Hearing details:

Brisbane.

23 October.

2017.

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<Price code A, PR597025>