Mr Lomanitiesa Vea v Tasmanian Freight Service T/A Tasmanian Freight Service

[2017] FWC 146

[2017] FWC 146

FAIR WORK COMMISSION

DECISION

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

Mr Lomanitiesa Vea
v
Tasmanian Freight Service T/A Tasmanian Freight Service
(U2016/12261)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 JANUARY 2017

Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A.

[1] On 23 September 2016, Mr Lomanitiesa Vea made an application for remedy for unfair dismissal under s.394 of the Fair Work Act (the Act). Mr Vea said that his employment had been terminated by Tasmanian Freight Service T/A Tasmanian Freight Service (TFS) on 2 September 2016.

[2] On 10 November 2016, TFS filed a Form F3 – Employer Response to Unfair Dismissal Application, stating that it had terminated Mr Vea’s employment on 26 August 2016.

[3] The matter was initially listed for conciliation at 11:15am on 11 November 2016 but was subsequently rescheduled for 12:15pm due to conciliator availability. Consequently, the Fair Work Commission (the Commission) twice attempted to telephone Mr Vea to confirm his availability for this changed time and left two voice messages requesting he urgently contact the Commission. The Commission also telephoned TFS and it confirmed its availability for the 12:15pm conciliation.

[4] The conciliation listed for 12:15pm on 11 November 2016 did not resolve the matter. As such, Directions were issued for Mr Vea to file submissions in support of his application by noon on 7 December 2016. On 15 November 2016, a Notice of Listing was sent to parties listing the matter for hearing on 30-31 January 2017.

[5] Mr Vea did not file any material by noon on 7 December 2016 and the Commission attempted to contact him by telephone on 13 December 2016. As Mr Vea was not available, a voice message was left requesting that he contact the Commission. A letter was then sent to Mr Vea’s representative Ms Moala, advising her that if the Commission was not contacted regarding Mr Vea’s overdue submissions the matter would be listed for a non compliance hearing on 19 December 2016.

[6] On 13 December 2016, the Commission telephoned TFS. It informed the Commission that it had not heard from Mr Vea or his representative. The Commission advised TFS that if the Commission did not receive correspondence from Mr Vea or his representative by 14 December 2016, the matter would be listed for a non compliance hearing.

[7] No response was received from Mr Vea or his representative by 14 December 2016. Consequently, the matter was listed for a non compliance hearing before me on 19 December 2016.

[8] The non compliance hearing on 19 December 2016 was only attended by TFS. TFS made oral application that Mr Vea’s application be dismissed pursuant to s.399A of the Act. I waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application of TFS. I then advised TFS that Mr Vea would be given until noon on 30 December 2016 to provide submissions as to why the Commission should not dismiss his application.

[9] On 19 December 2016, a letter was sent by the Commission to Mr Vea advising of my direction that he provide submissions as to why his application should not be dismissed by no later than noon on 30 December 2016.

[10] To date, Mr Vea has not responded to the various attempts to contact him and he has not filed any material with the Commission in relation to the s.399A application.

[11] 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.

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

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

[14] The power to dismiss an application if the non compliance was unreasonable is discretionary. Mr Vea has not responded to the Directions made on 11 November 2016 requiring him to file his material for the hearing and nor has he responded to my Direction that he file material in response to the s.399A application. Mr Vea has shown no willingness to prosecute his case since the conciliation, has provided no explanation for his failure to attend the non compliance hearing and no explanation for his failure comply with the two directions. I find his failures to attend and file material unreasonable. In these circumstances, I will exercise my discretion and dismiss Mr Vea’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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