Mr Stephen Newbey v Atlas Group Pty Ltd

[2016] FWC 5246

[2016] FWC 5246

FAIR WORK COMMISSION

DECISION

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

Mr Stephen Newbey
v
Atlas Group Pty Ltd
(U2016/6378)

DEPUTY PRESIDENT BINET PERTH, 7 OCTOBER 2016

Application for relief from unfair dismissal - failure of applicant to attend conference - failure of applicant to comply with directions - failure of applicant to file submissions - whether discretion should be exercised to dismiss substantive application.

[1] On 22 April 2016, Mr Stephen Newbey (Mr Newbey) filed an application (Application) with the Fair Work Commission (Commission) alleging he was unfairly dismissed by Atlas Group Pty Ltd T/A Atlas Group Pty Ltd (Atlas Group).

[2] On 12 May 2016, Atlas Group lodged a Form F3 Employer Response which included a jurisdictional objection to the Application on the grounds that the Mr Newbey’s dismissal was a case of genuine redundancy in accordance with section 389 of the Fair Work Act 2009 (Cth) (FW Act) (Jurisdictional Objection).

[3] The Application was listed for a conference in relation to the Jurisdictional Objection on 20 June 2016. A Notice of Listing advising the parties of the listing date was issued on 30 May 2016.

[4] At 1:00pm on Friday 17 June 2016, Mr Newbey advised my Chambers by telephone that he was unable to attend the conference on Monday 20 June 2016 because he was required to attend a job interview at the time of the listed conference. The conference was subsequently relisted for 12:30pm, Wednesday 13 July 2016 (July Conference).

[5] At 3:57pm on Tuesday 12 July 2016, one day prior to the relisted July Conference, my Chambers received an email from Mr Newbey advising that he would not be able to attend the July Conference the following day as he would be away working at this time. Mr Newbey requested the conference be relisted for the next available date. My Chambers advised Mr Newbey by reply email at 4:20pm that day that, given the lateness of Mr Newbey’s email notice and the fact that this matter has already been cancelled and relisted pursuant to a request previously made by Mr Newbey, the matter would proceed as listed the following day.

[6] At 5:01pm on Tuesday 12 July 2016, my Chambers received an email reply from Mr Newbey advising, "I am working in Port Hedland so it is impossible for me to attend. Please advise me of your reply." My Chambers replied to this email on the morning of Wednesday 13 July 2016, granting permission for Mr Newbey to participate in the July Conference via telephone. This email reply put Mr Newbey on notice that if Mr Newbey failed to participate in the July Conference, Atlas Group may make a section 399A application to dismiss Mr Newbey’s Application.

[7] On 13 July 2016, Mr John Trail attended the July Conference on behalf of Atlas Group, along with his representative, Mr Mark Vallence from Heelan & Co. Industrial Relations and Management. Mr Newbey did not attend in person or participate via telephone at the July Conference and could not be contacted despite several telephone attempts by my associate.

[8] At the July Conference, by subsequent email to the parties dated 13 July 2016 and via Directions issued to the parties on 14 July 2016 (July Directions), I advised the parties that, given Mr Newbey’s non-attendance at the July Conference, Atlas Group may provide written submissions to my Chambers by close of business, Friday 22 July 2016 pursuant to section 399A of the FW Act for the Application to be dismissed.

[9] In the event Atlas Group filed submissions pursuant to section 399A of the FW Act, the July Directions directed Mr Newbey to provide written submissions in response to Atlas Group’s section 399A submissions by close of business, Friday 29 July 2016. The parties were notified that the matter may be determined on the written submissions of both parties and the Application may be dismissed pursuant to section 399A of the FW Act or referred for conciliation in relation to the Jurisdictional Objection.

[10] On 20 July 2016 and in accordance with the July Directions, Atlas Group filed and served its section 399A submissions to dismiss the Application on the grounds that Mr Newbey failed to attend the July Conference and that such failure to attend was unreasonable. Atlas Group also submitted that the lack of merit in Mr Newbey’s substantive Application should be a relevant consideration when considering the reasonableness of Mr Newbey’s failure to attend the July Conference.

[11] No submissions in reply were received from Mr Newbey on or before close of business, Friday 29 July 2016.

[12] On 2 August 2016, my Chambers telephoned Mr Newbey to enquire as to whether he wished to reply to Atlas Group’s submissions to dismiss the Application. Mr Newbey advised my Chambers that he would email submissions to Chambers that evening seeking to have the matter heard and would provide his available dates. Mr Newbey confirmed he would preface his submissions with a request for an extension of time to file his submissions as they were at that time already 4 days overdue in contravention of the July Directions.

[13] Mr Newbey subsequently emailed my Chambers the following email:

“To whom it may concern, as i am now working out of perth i missed my my meeting with fair work .my next available dates to come in is between 24---26th of August please advise if this is okay.”

[14] In light of Mr Newbey’s email, a further conference in relation to the Jurisdictional Objection was listed for 24 August 2016. The parties were unable to resolve the issues in dispute at the conference. At the conclusion of the conference, both parties were advised that directions would be issued in relation to the Application detailing the conduct of the matter in preparation for a hearing in relation to the Jurisdictional Objection.

[15] On 31 August 2016, directions were issued to the parties (August Directions) for the filing and serving of materials in preparation for a Determinative Conference to determine the Jurisdictional Objection which was listed for Monday 3 October 2016. The August Directions directed Atlas Group to file with the Commission and serve on Mr Newbey its submissions in relation to the Jurisdictional Objection, case authorities, witness statements and any documents on which it sought to rely by close of business, Tuesday 13 September 2016. Mr Newbey was directed to file with the Commission and Atlas Group his submissions, case authorities, witness statements and any other documents which he sought to rely by close of business, Tuesday 27 September 2016. The August Directions advised the parties that compliance with the August Directions was mandatory.

[16] On 13 September 2016 and in accordance with the August Directions, Atlas Group filed its Jurisdictional Objection submissions, case authorities, witness statements and submissions in respect of representation at the Determinative Conference.

[17] On 20 September 2016, my Chambers received the following email from Mr Newbey:

“In section 28 of mr borichs statement he says mr baptista came to him re my employment, he says mid april ,on what date ? I was dismissed on april 20 ( mid april) coincidence? Mr baptista had me sacked for personal reasons because i was exposing him as lazy and incompetent in his position as a manager.  I will not be available to attend fw on the 3/10/16 due to work commitments, i cannot afford to lose my job   my earliest date will be 23/10/16 . Please advise if this is okay”

[18] On 23 September 2016, my Chambers emailed Mr Newbey to request his working days and hours so that the Commission could arrange for him to participate in a Determinative Conference by telephone. Mr Newbey replied to that email on 26 September 2016, advising that his available dates to attend the Determinative Conference were 24, 25 and 26 October 2016.

[19] On 27 September 2016, my Chambers sent an email to Mr Newbey, copying in Atlas Group, advising that due to the Commission’s unavailability on Mr Newbey’s requested listing dates, the Application would proceed as listed for Determinative Conference on Monday 3 October 2016 unless Mr Newbey sought and received Atlas Group’s consent to adjourn the matter, in which case the matter would be adjourned to the next available listing date, being Monday 31 October 2016.

[20] Mr Newbey failed to file and serve his submissions, case authorities, witness statements or any other documents by close of business, Tuesday 27 September 2016 as required by the August Directions.

[21] On 28 September 2016, my Chambers made several attempts to call the Mr Newbey to inquire as to the reason for his being late in filing his materials as directed, but to no avail.

[22] On 29 September 2016, the Applicant emailed my Chambers the following email:

“As stated in previous email i cannot attend due to work commitments (fifo ) and my next available dates are 24 and 25 of October.  I have no witnesses that are willing to appear before there current employer so i will argue the fact i was dismissed unfairly by mr baptista  so he could save his own job   Steve Newbey.”

[23] My Chambers subsequently cancelled the Determinative Conference listed for Monday 3 October 2016. At 5:11pm on 29 September 2016, my Chambers emailed Mr Newbey advising that he had been granted an extension until 5:00pm the following day, Friday 30 September 2016, to file with the Commission and serve on Atlas Group the materials directed of him in the August Directions. The email stated that, should Mr Newbey file the documents by the above date, the matter would be listed for 1:00pm, Monday 24 October 2016. Mr Newbey was advised that, should he fail to file the materials by the above date, the Commission would dismiss his Application on its own motion.

[24] No correspondence was received from Mr Newbey on or before 5:00pm, Friday 30 September 2016.

[25] Section 399A of the FW Act states:

“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.

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.”

[26] Mr Newbey failed to attend or participate in the July Conference and failed to comply with either the July Directions or the August Directions. Accordingly, Mr Newbey’s unfair dismissal application has been dismissed pursuant to section 399A of the FW Act. An Order [PR583586] to this effect will be issued.

DEPUTY PRESIDENT

Appearances:

S Newbey, Applicant

J Trail on behalf of Atlas Group Pty Ltd and M Vallence of Heelan & Co. Industrial Relations and Management

Conference details:

2016.

Perth:

August 24.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR583585>