Mr Phillip Camilleri v Point 2 Point Secure Pty Ltd

[2013] FWC 7455

[2013] FWC 7455

FAIR WORK COMMISSION

DECISION

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

Mr Phillip Camilleri
v
Point 2 Point Secure Pty Ltd
(U2013/11689)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 8 OCTOBER 2013

Termination of employment - minimum employment set out by s.383 of the Act - non compliance with s.394(2)(a) - s.399A(1)(a) and (b) - application dismissed.

[1] This is an application by Mr Phillip Camilleri (“the Applicant”) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant’s employment was terminated with effect on 5 June 2013 by Point 2 Point Secure Pty Ltd (“the Respondent”).

[2] At the outset, the Respondent objected to the Fair Work Commission (“the Commission”) dealing with the application for reasons that it is alleged that the Applicant had not served the minimum period of employment as defined under the Act and that his application was not competent for that reason. The application was also claimed to have been made beyond the 21 days stipulated by s.394(2)(a) of the Act, being lodged in the Commission on 22 July 2013. In this regard, the application was made some 26 days beyond the 21 day period provided for under s.394(2)(a) of the Act.

[3] I issued directions to the parties on 4 September 2013, requiring that the Applicant file a written statement and supporting documents in relation to the two jurisdictional issues identified. This material was to be filed by 5:00pm on 18 September 2013. The hearing was set down for 2 October 2013.

[4] No material was received by 18 September 2013. That is, the Applicant did not file any materials of any kind in compliance with the directions issued on 4 September 2013.

[5] I wrote to the Applicant on 19 September 2013, requesting that he file any material in relation to the jurisdictional issues by 5:00pm on 20 September 2013. The Applicant replied to this email on 19 September, seeking “direction” on what actions he needed to take and advising that he was currently out of the country until 8 October.

[6] The Applicant then telephoned my chambers that afternoon and my associate advised him of the material that was required to be filed and the (new) deadline for filing the material (being 5:00pm on 20 September 2013). The Applicant indicated that he understood the requirements but also indicated that he did not consider that he had any such documentation that would support his application (specifically in response to the jurisdictional issues raised). The Applicant advised that he was in New Zealand. My associate reiterated that as it stood the hearing was listed for 2 October 2013.

[7] I wrote to the Applicant at 8:47am on 20 September 2013, reiterating what the directions had required and directing that if the Applicant had any material in support of his application, it should be filed by 5pm that day (20 September 2013). No material was received by that time and no request for an extension of time or explanation of extenuating circumstances was forthcoming.

[8] I again wrote to the Applicant on 24 September 2013, noting that no material had been received and advising that if no material was received by 5:00pm on 25 September 2013 the application would be determined on the basis of the material on the file (which essentially consisted of the Applicant’s F2 application for unfair dismissal remedy and the Respondent’s F3 response to application for unfair dismissal remedy).

[9] No material was received from the Applicant by the directed time of 5:00pm on 25 September 2013. No request for an extension of time or explanation of extenuating circumstances was forthcoming from the Applicant.

[10] On 27 September 2013, I wrote to both parties, and sought the Respondent's view as to what course it wished to take, and whether it would agitate an application under s.399A of the Act, or was the matter to be left with the Commission to determine under its powers to dismiss an application.

[11] The Respondent indicated in writing (and copied to the Applicant) that it would be seeking to have the application dismissed under s.399A of the Act. Section 399A of the Act is set out further below.

[12] The Applicant again wrote to chambers (via email) on Tuesday 1 October 2013 (at 1.00pm) in the following terms:

Hey im actually over seas at the moment and not due back until the 8th October. (sic) 

[13] A short while after receiving that email from the Applicant I replied (at 2:31pm, Tuesday 1 October 2013) in the following terms:

Dear Mr Camilleri

Thank you for your email.

Senior Deputy President Richards considers that you have been aware of the hearing listed for tomorrow Wednesday 2 October 2013 for a number of weeks. As such, the hearing will proceed tomorrow at 12 midday QLD time. I will dial you into the hearing.

If you have a land line or alternative mobile phone number you are using in New Zealand, please provide this number by reply email. Alternatively, I will attempt to contact you on your mobile phone number on the file – [mobile phone number].

If you are not able to be contacted at that time, the hearing will proceed in your absence on the basis of the material on the file. As such, it would be preferable that you were available by telephone [...].

[14] It appears that on Tuesday 1 October 2013, the Applicant sent the following email to the Respondent’s HR Manager (at 11:50pm):

Hi Kate as im currently out of the country I won't be able to do the phone meeting that you have set up I will be returning on the 9th of October will we be able to proceed then? 

[15] This email was forwarded to chambers by the Respondent at 8:29am on Wednesday 2 October 2013.

[16] On Wednesday 2 October 2013, at 8:49am, the following email was sent to the Applicant:

Dear Mr Camilleri

Ms Lehane from the Company has forwarded your below email to the Commission.

The telephone hearing scheduled for today has been organised by the Fair Work Commission for the purpose of addressing the application you made to the Commission for unfair dismissal remedy. You have been aware of the listing for a number of weeks.

Senior Deputy President Richards intends to proceed with the hearing today at 12 midday Queensland time. Both parties will be on the telephone – I will dial you into the hearing. It is not anticipated that the hearing will go for more than 20-30 minutes.

So that I can be sure that I am able to contact you on your Australian mobile phone number, I will give you a call at approximately 10am Qld time, ahead of the hearing.

If you have a land line or a different phone number you would prefer to be contacted on, please let me know.

[17] On Wednesday, 2 October 2013, at 11:46am (with the hearing due to commence at midday), I sent the following email to the Applicant:

Dear Mr Camilleri

I have tried a number of times since 10am QLD time to contact you on your mobile phone number, ahead of the hearing today at 12 midday QLD time (which I understand to be 3pm NZ time).

Please contact me as soon as possible or advise of a landline number you are available on.

As advised, the matter may be determined in your absence if you are not contactable.

[18] The hearing proceeded as scheduled. The Applicant was unable to be contacted and made no appearance at the hearing.

[19] Some hours later, at 1:53pm Wednesday 2 October 2013, the Applicant sent the following email to chambers:

As I have wrote an email yesterday stating that im over seas and I will be returning back to Brisbane on the 9th of October.  Can we please residual it arround the time of my retun.  Thank you phillip Camilleri (sic)

Findings

[20] I conducted a hearing of this matter on 2 October 2013. The Applicant did not appear by telephone (though he was aware of the hearing date and time). He was not able to be contacted on his mobile telephone number, despite various attempts, or by emails to his email account on the day of the hearing.

[21] It came to my attention (as set out above) on the day of the hearing that the Applicant had written to his former employer seeking to have the hearing deferred as he was in New Zealand. In the circumstances, I proceeded to conduct the hearing regardless of this communication. The Applicant had previously been in contact with my chambers and made no such request or altered his contact details. The Applicant had provided no material in response to the directions (and was unlikely to do so on his earlier remarks) and had given no reasons why he was unable at the time to proceed to attend the hearing by telephone, at least. The Applicant may well have been overseas (in New Zealand) but he cannot simply assume the processes he has put in train by making his application under s.394 of the Act (at public expense and expense to his former employer) can be manipulated at his convenience (without reasonable explanation). Parties - barring exceptional circumstances - are also required to ensure they are readily and continuously contactable following the lodgement of an application.

[22] It appeared to me in the context also to be an unjustifiable drain on the Respondent’s resources, including its time, to adjourn the proceedings.

[23] The materials before me indicate that the Applicant had not served the minimum period of employment set out by s.383 of the Act. The Applicant’s (own) F2 application gave his date of employment as 11 December 2012 and date of effective dismissal as 5 June 2013. The Respondent’s F3 response gave the Applicant’s date of employment as 17 December 2012 and date of effective dismissal as 5 June 2013. There are no materials before me that contest this observation. I add that I took up as evidence at the time of the hearing the Applicant’s offer of employment as signed and dated and his letter of termination. These documents support the finding that the minimum period of employment had not been completed.

[24] Consequently, the Applicant was not an employee protected from unfair dismissal and was not able to make an application for relief under s.394 of the Act.

[25] The Applicant has also provided no defence in respect of his failure to comply with s.394(2)(a) of the Act.

[26] There are no grounds on which I could allow his application in a different period of time for the purposes of s.394(3) of the Act. The application before me is not competent therefore for reasons of non-compliance with s.394(2)(a) of the Act.

399A Dismissing applications

[27] The application by Mr Camilleri is dismissed for both these jurisdictional reasons. I add that the application itself was also the subject of an application under s.399A made by the Respondent, as mentioned above. Section 399A of the Act provides as follows:

(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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

[28] The Applicant duly made an application pursuant to s.399A(1)(b) of the Act, seeking that the Commission dismiss the application because the Applicant has failed to comply with directions.

[29] I add that the Applicant did not make an appearance at the time of the hearing, and the Respondent at that time moved an amendment to its application to comprehend s.399A(1)(a) of the Act. I agreed to this amendment. The application is made out in these regards as well.

[30] In the event I am wrong in respect of either of the two jurisdictional issues considered above, I also dismiss the application on grounds s.399A(1)(a) and s.399A(1(b) of the Act. My reasons for so doing are set out earlier in this decision.

[31] For all these reasons, the application under s.394 of the Act is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant.

Ms K Lehane, HR Manager, for the Respondent

Hearing details:

By telephone

2013

2 October

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