Mr Scott Wilson v Young's Earthmoving
[2018] FWC 7399
•5 DECEMBER 2018
| [2018] FWC 7399 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Scott Wilson
v
Young's Earthmoving
(U2018/9749)
| Deputy President Clancy | MELBOURNE, 5 DECEMBER 2018 |
Application for an unfair dismissal remedy.
On 20 September 2018, Mr Scott Wilson 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 Wilson said his employment had been terminated by Young’s Earthmoving on 2 September 2018.
On 25 September 2018, email correspondence was sent to Mr Wilson which included a Notice of Listing for a conciliation at 12.15pm (AEDT) on 19 October 2018.
On 12 October 2018, Mr Wilson sent an email to the Commission seeking an update on his matter and advised he had not received any material from the Commission. Mr Wilson noted he would not be at the postal address provided on his application until December.
On 16 October 2018, Mr Wilson was again advised via email that his matter was listed for conciliation at 12.15pm on 19 October 2018. It was noted that in the absence of advice to the contrary, he would be contacted on the phone number provided on his application.
On 17 October 2018, further email correspondence was sent to Mr Wilson which confirmed an email had been sent to him the day prior and also on 25 September 2018. Mr Wilson was requested to confirm his contact phone number for the purpose of the conciliation. Later that day, Mr Wilson emailed the Commission and advised he had not received any documents on 25 September 2018. He asked what the date of the conciliation was and noted he would have to organise time off work to take a telephone call or have the conciliation moved to his week off work or night shift week. Mr Wilson indicated he was working on a mine site where he is not permitted to have his phone.
On 18 October 2018, two voicemail messages were left for Mr Wilson to confirm his availability to attend the conciliation the following day. On the second occasion, it was noted that the conciliation remained listed for 19 October 2018.
At 12.21pm (AEDT) on 19 October 2018, the conciliator sent correspondence to the parties noting the matter did not proceed because of the unavailability of both parties. At 12.42pm, Mr Wilson wrote to the Commission advising he was available and had taken time off work to take the phone call. At 1.12pm, the conciliator wrote to Mr Wilson and advised he had attempted to call his mobile number at 12.15pm and was sent straight to voicemail. A short time later, Mr Wilson wrote to the Commission and advised he wished to proceed to a hearing.
On 8 November 2018, Mr Wilson sent an email to the Commission enquiring if a date had been set for the hearing.
On 9 November 2018, a Notice of Listing was sent to the parties scheduling the matter for an Arbitration Conference/Hearing on 7-9 January 2019. Directions were also issued which required Mr Wilson to file his material by no later than noon on 19 November 2018 and Young’s Earthmoving to file its reply material by no later than noon on 10 December 2018.
As no material was received by noon on 19 November 2018, a telephone call was made to Mr Wilson on 20 November 2018 to enquire as to the status of his material. There was no answer and a voicemail message was left seeking a return call.
On 21 November 2018, an email was sent to Mr Wilson confirming that no material had been received from him. It was noted he may request an extension to file his submissions and in the absence of such a request by 2.00pm that day, the matter would be listed for a non-compliance hearing to occur on 23 November 2018. An attempt to telephone Mr Wilson was also made later that day, however that was unsuccessful and a voicemail message was left confirming that the non-compliance hearing would proceed on 23 November 2018. This was confirmed via a Notice of Listing sent to parties via email.
A further attempt to telephone Mr Wilson was made by the Commission on 22 November 2018. This was unsuccessful and a voicemail message was left.
The non-compliance hearing proceeded before me on 23 November 2018. Mr Wilson could not be contacted. Young’s Earthmoving made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Wilson’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Young’s Earthmoving’s oral application.
Following the non-compliance hearing, correspondence was sent to Mr Wilson’s nominated email and postal addresses advising him of Young’s Earthmoving’s s.399A application. The postal correspondence was sent via express post. Mr Wilson was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 30 November 2018. The correspondence also noted that if the Commission did not receive a response, Mr Wilson’s application for relief from unfair dismissal would be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Mr Wilson’s nominated postal address on 29 November 2018.
To date, Mr Wilson has not filed any material with the Commission.
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.
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
As Mr Wilson did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Despite his contact with the Commission around the conciliation date and an enquiry on 8 November 2018 as to the status of his matter, Mr Wilson has failed to respond to numerous emails and voicemail messages left by the Commission since 19 November 2018. Further, despite stating he wished to proceed to hearing, Mr Wilson has not exhibited a willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with the Commission’s directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Wilson’s application. An Order to this effect will be issued shortly.
DEPUTY PRESIDENT
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