Nathan Clack v Jalee Trading Trust & the Green Family Trust T/A Greenwulf Metal Roofing

[2019] FWC 4566

[2019] FWC 4566

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Clack
v
Jalee Trading Trust & The Green Family Trust T/A Greenwulf Metal Roofing
(U2019/3110)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 JULY 2019

Application for an unfair dismissal remedy.

[1] On 20 March 2019, Mr Nathan Clack 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). The application was filed on Mr Clack’s behalf by his representative, Australian Dismissal Services.

[2] In his Form F2 – Unfair Dismissal Application, Mr Clack said that he was notified his employment had been terminated by Jalee Trading Trust & The Green Family Trust T/A Greenwulf Metal Roofing (GMR) on 1 March 2019, and that the dismissal took effect on the same day.

[3] The matter proceeded to conciliation on 1 May 2019. At the conclusion of the conciliation, the parties agreed that the file should remain open until close of business on 8 May 2019 to allow Mr Clack to consider GMR’s offer to resolve the dispute.

[4] On 16 May 2019, the Commission received an email from Ms Amanda Millar of Australian Dismissal Services advising that Mr Clack did not accept GMR’s offer and wished to proceed to arbitration.

[5] On 20 May 2019, Australian Dismissal Services filed a Form F54 – Notice of representative ceasing to act with the Commission.

[6] Later the same day, the Commission issued a Notice of Listing to the parties scheduling the matter for a Jurisdiction (Small Business Fair Dismissal Code) and Arbitration Conference/Hearing on 29 to 31 July 2019. Directions were also issued for the filing of material, requiring GMR to file its material in support of its jurisdictional objection by no later than noon on 3 June 2019, Mr Clack to file his response to the jurisdictional objection and in support of his application by no later than noon on 11 June 2019, and GMR to file any material in reply by no later than noon on 18 June 2019.

[7] In compliance with the directions, GMR filed its material on 2 June 2019.

[8] No material was received from Mr Clack by noon on 11 June 2019. On 12 June 2019, the Commission emailed Mr Clack regarding his overdue material and sought his response as to when he intended to file his material. Following this, the Commission also attempted to telephone Mr Clack. The Commission’s records indicate that Mr Clack accepted the call but did not respond to the Commission staff member’s introduction and ultimately terminated the call. The Commission subsequently sent Mr Clack a SMS advising that his material was overdue and that his matter was at risk of being listed for a non-compliance hearing.

[9] Later on 12 June 2019, the Commission again emailed Mr Clack warning that if he did not respond by 10:00am the next morning, his matter would be listed for a non-compliance hearing.

[10] The Commission again attempted to telephone Mr Clack on 13 June 2019 but was unable to reach him. A voicemail message was left advising that as no material or contact had been received from him, the matter would be listed for non-compliance hearing the next day and further, that failing to appear at the non-compliance hearing put his matter at risk of being dismissed. Following this, a Notice of Listing was sent to the parties scheduling the non-compliance hearing for the following morning. A SMS was also sent to Mr Clack advising him that the non-compliance hearing had been listed.

[11] The non-compliance hearing proceeded before me on 14 June 2019. Mr Clack could not be contacted. GMR made an oral application for the matter to be dismissed pursuant to s.399A of the Act due to Mr Clack’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[12] Following the non-compliance hearing, Mr Clack returned a telephone call to my chambers and was advised that the telephone call to him earlier that morning was in relation to a non-compliance hearing, which had proceeded in his absence. My chambers also advised Mr Clack that he could expect further correspondence from the Commission in due course.

[13] Later that day, the Commission sent correspondence to Mr Clack’s nominated email and postal addresses advising him of GMR’s s.399A application. The postal correspondence was sent via express post. Mr Clack was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00pm on 24 June 2019. The correspondence also noted that if the Commission did not receive a response, Mr Clack’s application for relief from unfair dismissal may be dismissed. A review of the express post tracking ID indicates that the correspondence was delivered to Mr Clack on 17 June 2019.

[14] To date, Mr Clack has not filed any material with the Commission.

[15] 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.”

[16] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[17] As Mr Clack did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing his application, Mr Clack has failed to actively prosecute his case. Mr Clack has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the non-compliance hearing on 14 June 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Clack’s application. This ends his unfair dismissal application.

[19] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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