Mr Shane Spencer v Emerald Refrigerated Logistics

[2017] FWC 6493

[2017] FWC 6493

FAIR WORK COMMISSION

DECISION

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

Mr Shane Spencer
v
Emerald Refrigerated Logistics
(U2017/9189)

COMMISSIONER HUNT BRISBANE, 6 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 24 August 2017 Mr Shane Spencer made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Spencer’s employment had been terminated by Emerald Refrigerated Logistics on 23 August 2017.

[2] The application was listed for Directions Conference before me on 27 November 2017. In response to the Notice of Listing, Mr Spencer sent an email in reply stating, “Haven't got a clue what your on about , your no help what so ever”. On receipt of this email, my Associate made a follow up telephone call to Mr Spencer during which he repeated words to a similar effect and hung up.

[3] Due to a personal matter affecting him Mr Spencer had previously sought and was granted an adjournment for two prior listings for conciliation.

[4] I instructed my Associate to send correspondence to the parties acknowledging the reasons previously given by Mr Spencer for his inability to prosecute his claim up until now. The purpose of the Directions Conference was explained and Mr Spencer was informed him that if he failed to attend the Directions Conference, the Respondent may make an application pursuant to s.399A of the Act to dismiss his application.

[5] In response to that email, Mr Spencer sent an email to my Chambers stating:

‘i am not avaidble for any phone call on the 27/11/17 as there is another matter on hand at the moment ,ill advise you when im ready.

Im currently having councilling after the loss of my Mum ,now do your job and stop bothering me until im cleared by the Doctor’

[6] In light of Mr Spencer’s response, I instructed my Associate to notify the parties that the listing for the Directions Conference would be vacated. The parties were informed that the matter would be listed for hearing by telephone on 30 November 2017. The Applicant was advised that if he failed to attend the hearing without providing medical evidence which substantiated his inability to prosecute his application, that his application may be dismissed.

[7] On 29 November 2017, Mr Spencer sent correspondence to my Chambers in which he enquired whether he could provide a ‘pic’ of his medical certificate and email it to Chambers. Mr Spencer was advised that a picture of his medical evidence was sufficient.

[8] Mr Spencer failed to attend the telephone hearing and did not send to the Commission any medical evidence to support his request.

[9] On 30 November 2017 the following correspondence was issued by my Chambers:

‘Dear parties

…

I note that at the hearing in this matter the Respondent made an application pursuant to s.399A of the Fair Work Act 2009 to dismiss the unfair dismissal application.

The Commissioner directs that the Applicant provide medical evidence which substantiates his incapacity to participate in these proceedings by no later than 4:00pm on Monday, 4 December 2017. If the Applicant fails to provide the medical evidence by that time or [it] is insufficient in supporting the Applicant’s incapacity, the Commission will consider the Respondent’s s.399A application ‘on the papers’ without further notice.’

[10] On 30 November 2017, Mr Spencer sent the following response:

‘And when did you have the hearing ,because to my knowledge i havnt spoken to you

….

Youll have my medical certificate and dont bother me on the phone either’

[11] As at 6 December 2017, Mr Spencer has not provided any medical evidence to excuse his failure to attend the hearing and to support his claim of incapacity. In the circumstances, I have decided to deal with Emerald Refrigerated Logistic’s s.399A application on the papers.

[12] 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.’

[13] Emerald Refrigerated Logistic have made an application under s.399A of the Act for the Commission to dismiss Mr Spencer’s application for failure to comply with a direction of the Commission and failure to attend a hearing held by the Commission.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Despite numerous opportunities and contact from my Chambers, Mr Spencer has failed to provide any medical evidence to excuse his failure to attend and to support his claim, despite being afforded ample opportunity to do so.

[15] Whilst I am sympathetic to Mr Spencer’s communication for his inability to prosecute his case, without medical evidence that he is incapacitated from doing so, it is his obligation to prosecute his case.

[16] I find that Mr Spencer’s failure to comply with the Commission’s direction and to attend a hearing to be unreasonable.

[17] In these circumstances, I will exercise my discretion and dismiss Mr Spencer’s application pursuant to s.399A of the Act.

[18] Mr Spencer’s application is dismissed.

COMMISSIONER

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