Nathan Ferguson v Smithfield Smash Repairs T/A Smithfield Smash Repairs

[2018] FWC 1330

[2018] FWC 1330

FAIR WORK COMMISSION

DECISION

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

Nathan Ferguson
v
Smithfield Smash Repairs T/A Smithfield Smash Repairs
(U2017/6821)

COMMISSIONER SIMPSON BRISBANE, 8 MARCH 2018

Application for an unfair dismissal remedy.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Nathan Ferguson who alleges that the termination of his employment with Smithfield Smash Repairs T/A Smithfield Smash Repairs (‘Smithfield’) was unfair. The application was lodged in Brisbane on 26 June 2017.

[2] The matter was listed for Conciliation, by Telephone before a Fair Work Commission Conciliator at 2:15pm on Tuesday 18 July 2017.

[3] The Commission had requested of both parties on 11 July that telephone numbers be confirmed prior to the Conciliation, and on 13 July several calls and a voicemail was left for Smithfield’s Director and contact person, Mr Peter Mackay, requesting that the Form F3 –Employer’s Response be filed as soon as possible. However, the Conciliation did not proceed due to the non-attendance of Smithfield. The Conciliator Report noted that the Respondent claimed he had not received the Notice of Listing and was unaware of the Conciliation proceeding on 18 July 2017. The Conciliator also made a file note that day of the parties’ willingness for the matter to be listed for a second Conciliation Conference.

[4] The matter was then relisted for Conciliation on 4 August 2017 at 9.15am. Again, letters were emailed to the parties on 31 July 2017 requesting confirmation of telephone numbers, and on 1 August the Commission contacted Mr Mackay who confirmed his telephone number and said he would be unable to file the Employer Response prior to the Conciliation.

[5] Again, the Conciliation on 4 August did not proceed due to Mr Mackay’s unavailability. Mr Mackay then contacted the Conciliator that day to advise his non-attendance was due to only having two days’ notice of the Conciliation. It was brought to his attention that the Notice of Listing was sent on 21 July 2017. Mr Mackay requested another listing for the Conciliation. The Conciliator noted this was the second occasion at which Smithfield failed to attend the Conciliation. Accordingly, the Conciliator referred the matter for arbitration.

[6] The matter was listed for Mention and Directions before me by telephone on 31 August 2017 at 2.00pm. The Notice of Listing was emailed on 25 August 2018, and especially posted by express post to Mr Mackay. A further email was sent to Mr Mackay on 30 August, attaching again the Notice of Listing and requesting he confirm his contact number for the Mention and Directions.

[7] Again, Mr Mackay did not attend. He called my Chambers at 2.35pm to advise he had been awaiting the telephone call for the Mention, but was called away to attend to a customer. Mr Mackay apologised for his non-attendance and was advised that Chambers would contact him in due course as to the next steps.

[8] At the Mention and Directions, Mr Ferguson was directed to file an amending application with supporting material in order to identify the correct respondent, by 7 September 2017. No material, nor any request for an extension of time, was received from Mr Ferguson by 9 February 2018, at which point Chambers sent an email to Mr Ferguson requesting that he provide an explanation or advise whether he intended to withdraw his application by 14 February 2018. The email advised that if no response were received, the Commission may dismiss the application for want of prosecution under s.587 of the Act.

[9] No response or explanation from Mr Ferguson has been received by the Commission as at 8 March 2018.

Consideration

[10] In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

[11] The Full Bench of Fair Work Commission in Sayer v Melsteel Pty Ltd 1considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to the Fair Work Commission to consider exercising the power of the Tribunal under section 587(1). Sayer further considers that it would not be inconsistent with s. 587(1) to dismiss the application without examining the merits.

[12] Although Mr Ferguson attended the Conciliations and the Mentions/Directions which were listed, he did not comply with the Direction made to him, and then allowed some five months to elapse without providing any material or contacting the Commission.

[13] I consider that Mr Ferguson clearly had ample time and opportunity to prosecute his application.

[14] I adopt the approach of the Full Bench in Sayer in this matter. The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above. Accordingly the matter is dismissed.

COMMISSIONER

<PR600893>

 1   [2011] FWAFB 7498.

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