Mr William Politis v Oldfields Holdings Limited

[2018] FWC 5710

[2018] FWC 5710

FAIR WORK COMMISSION

DECISION

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

Mr William Politis
v
Oldfields Holdings Limited
(U2018/4014)

COMMISSIONER JOHNS MELBOURNE, 13 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] On 17 April 2018, Mr William Politis (Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). The Applicant alleged his employment had been terminated unfairly by Oldfields Holdings Limited (Respondent) on 29 March 2018.

[2] On 13 June 2018 the matter was allocated to me, and subsequently listed for a Mentions/Directions hearing on 19 June 2018.

[3] On 19 June 2018, during the course of the Mentions/Directions hearing, the Respondent made an offer for reinstatement. The Applicant was directed to respond to the offer by 21 June 2018.

[4] Over the course of the next week, emails between the parties indicated that the offer had not been accepted. Consequently the matter was listed for another Mentions/Directions hearing on 17 July 2018.

[5] On 17 July 2018, during the second Mentions/Directions hearing the parties again reached an in-principle agreement which would result in the reinstatement of the Applicant.

[6] Nonetheless the matter was set down for Determinative Conference on 21 August 2018. Directions were also issued for the filing of materials.

[7] On 14 August 2018, the Respondent filed an application seeking that the matter be dismissed under section 399A(1)(b) of the FW Act on the basis of the Applicant’s repeated alleged failures to comply with the directions made by the Commission in respect of the application.

[8] On 14 August 2018, the Applicant was directed to file a response explaining why the matter should not be dismissed. He was required to do so before 4:00pm on 21 August 2018. This was sent by email and express post to the Applicant.

[9] The Applicant has not filed any materials in response.

Submissions

[10] On 14 August 2018, the Respondent asserted the following grounds supported their application under section 399A(1)(b) of the FW Act to dismiss the matter:

“1. First Failure of the Applicant to comply with the Commission’s Directions

(a) On or about 19 June 2018 during the first Mention/Directions hearing, the Applicant and Respondent reached an in-principle agreement that the Applicant would be reinstated with back pay, subject to a first and final warning (First Settlement Terms);

(b) On the same day, Commissioner Johns issued Directions that the Applicant was to respond to the First Settlement Terms proposed by the Respondent by 12pm on 21 June 2018 (19 June 2018 Directions);

(c) The Respondent wrote to the Applicant on 20 June 2018 to confirm the terms of the First Settlement Terms;

(d) The Applicant failed to comply with the 19 June 2018 Directions, as neither the Applicant nor his representative notified the Respondent as to whether the Applicant accepted or rejected the First Settlement Terms by the allocated time and date;

(e) To date, the Respondent has not received an explanation for this delay;

2. Second Failure of the Applicant to comply with the Commission’s Directions

(a) The Respondent contacted the Applicant’s representative on 22 June 2018 to note that notwithstanding the Applicant’s failure to comply with the 19 June 2018 Directions, the Respondent was willing to keep the First Settlement Terms open for acceptance until 4pm on 22 June 2018;

(b) At approximately 5.22pm on 22 June 2018, the Applicant’s representative advised the Respondent that the Applicant would not be agreeing to the First Settlement Terms on the basis that the Applicant would not accept a first and final warning;

(c) On 22 June 2018, the Respondent acknowledged the Applicant’s rejection of the First Settlement Terms and reminded the Applicant that this meant the matter would proceed as per the timetable set by Commissioner Johns during the conference on 19 June 2018. This timetable included Directions that the Applicant file and serve an outline of his submissions and his evidence by 3 July 2018;

(d) On 3 July 2018, the Applicant failed for a second time to comply with the Commission’s Directions, by failing to file or serve either an outline of his submissions or any evidence;

(e) To date, the Respondent has not received an explanation for this delay;

3. Third Failure of the Applicant to comply with the Commission’s Directions

(a) On Monday 16 July, the matter was listed by the Commission for a second Mention/Directions hearing, to be held on Tuesday 17 July 2018;

(b) On or about 17 July 2018 during the second Mention/Directions hearing, the Applicant and Respondent reached an in-principle agreement that the Applicant would be re-employed by the Respondent on the same terms and conditions of employment as he was previously engaged, subject to a first and final warning (Second Settlement Terms);

(c) The Respondent wrote to the Applicant on 19 July 2018 to confirm the terms of the Second Settlement Terms, requiring the Applicant to respond to the offer by no later than 4pm on 19 July 2018;

(d) In its correspondence of 19 July 2018, the Respondent also reminded the Applicant that if the Second Settlement Terms were not accepted, the matter would proceed in accordance with the revised timetable set by Commissioner Johns during the second Mention/Directions hearing on 17 July 2018. This timetable included Directions that the Applicant file and serve an outline of his submissions and his evidence by 27 July 2018 (17 July 2018 Directions);

(e) On 23 July 2018, the Applicant advised the Respondent that the Applicant would not be agreeing to the Second Settlement Terms on the basis that the Applicant would not accept re-employment in lieu of reinstatement; and would also not accept a final written warning.

(f) On 27 July 2018, the Applicant failed for a third time to comply with the Commission’s Directions, by failing to file or serve either an outline of his submissions or any evidence as required by the 17 July 2018 Directions;

(g) To date, the Respondent has not received an explanation for this delay;

(h) To date, the Applicant has still not filed or served either an outline of his submissions or any evidence, despite the requirement on him to do so having passed two weeks ago.

Prejudice to the Respondent

As per the 17 July 2018 Directions, the Respondent is due to file its submissions and witness statements by Friday 10 August 2018. It is clearly unable to do so in light of the Applicant’s repeated and unreasonable failure to comply with the Commission’s directions, as it does not know the case it is required to answer or defend against. The Applicant has indicated that there are “issues in dispute” but the Applicant has not identified what those issues, factual or otherwise, are.

The Respondent is therefore unable to file, or even commence drafting, its outline of submissions in response or any witness statements in support of its case unless the Applicant files the appropriate material in the Commission.

With the Determinative Conference for these proceedings listed for less than 2 weeks from the date of this letter, the Respondent respectfully submits that it is not in a position to prepare its case, and that were it required to do so, it would be subject to extreme prejudice as a result of reduced timeframes and an ignorance of the Applicant’s case.

Furthermore, the Applicant’s repeated and unreasonable non-compliance has caused the Respondent to incur unnecessary costs in preparing and attending for the second Mention/Directions hearing, and consistently following up the Applicant and his representative for their response.

Request for Dismissal of the Application

The Respondent submits that the Applicant’s consistent and unexplained failures to comply with Directions issued by the Commission demonstrates disrespect for the Commission’s authority in these proceedings as well as the Respondent as a party, indicates a deliberate and intentional disregard for procedure, and suggests that the Applicant does either not wish to continue the Application or does not intend to conduct his case in accordance with the Commission’s rules.

The Applicant has shown no willingness to prosecute his case and has provided no explanation to the Respondent or the Commission for his failure to comply with the Commission’s directions.

The Respondent submits that the circumstances of this case are not dissimilar to those of Michael Willis v G&N Strang Holdings Pty Ltd T/A Queensland National Hotel [2018] FWC 2425 and Rachael Ferraro v Australian Way Pty Ltd T/A Australian Way [2018] FWC 4009 in which the applications for unfair dismissal were dismissed after the Applicants failed to comply with the Commission’s directions to file material.

As the Applicant has failed to comply with the Commission’s Directions three times during the course of the proceedings so far, it is clear that the Applicant has no intention of compliance. The Applicant’s actions have caused the Respondent significant prejudice, and in our view, allowing the Applicant to continue his application will only permit him more opportunities to do so.

For completeness we would also note that reinstatement was offered to the Applicant for the first time on 24 May 2018, which was rejected at that time.

For each of the reasons outlined above, the Respondent respectfully makes the request under section 399A(1)(c) of the Act that the Commission exercises its discretion to dismiss the Applicant’s Application.”

Determination

[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] Because the Applicant did not file any material in opposition to the application to dismiss his application for unfair dismissal remedy, I will determine the s.399A application on the papers.

[13] I am satisfied that the Applicant unreasonably failed to comply with directions made by the Commission as outlined in the Respondent’s submissions above.

[14] Consequently, after considering all the material, the Applicant’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

Appearances:

Mr M O’Sullivan for the Applicant on 19 June 2018, Applicant represented himself on 17 July 2018.

Ms J Fisher for the Respondent.

Hearing details:

19 June 2018 by telephone.

17 July 2018 by telephone.

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