Nathan Vanderplight-Lockley v Gary Campbell T/A Gaz Roofing

[2017] FWC 4792

[2017] FWC 4792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Vanderplight-Lockley
v
Gary Campbell T/A Gaz Roofing
(U2017/7851)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 SEPTEMBER 2017

Application for an unfair dismissal remedy.

[1] On 20 July 2017, Mr Nathan Vanderplight-Lockley made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Vanderplight-Lockley said he was notified of his dismissal on 23 June 2017, with it taking effect the same day.

[2] The matter was listed for conciliation on 21 August 2017, however Gaz Roofing declined to participate. Consequently, directions were issued and the matter was listed for Extension of Time Conference/Hearing. Mr Vanderplight-Lockley was directed to file an outline of submissions, witness statements and other documentary material in support of his application for an extension of time by no later than noon on 25 August 2017.

[3] On 24 August 2017, a member of the Fair Work Commission’s staff spoke with Ms Linda Vanderplight, Mr Vanderplight-Lockley’s representative. The Commission subsequently forwarded templates, available on the Commission’s website, to assist Mr Vanderplight-Lockley in completing his material.

[4] As no material had been received from Mr Vanderplight-Lockley, in the afternoon of 25 August 2017 the Commission attempted to telephone Ms Vanderplight, however this was unsuccessful and a voicemail was left seeking a return call.

[5] On 28 August 2017, Gaz Roofing filed an application pursuant to s.399A of the Act, seeking the dismissal of Mr Vanderplight-Lockley’s application due to his failure to comply with a direction of the Commission. The following day, correspondence was sent to Ms Vanderplight to the postal and email address she shares with Mr Vanderplight-Lockley, informing her of Gaz Roofing’s s.399A application. The direction contained in the correspondence required submissions, evidence or other documentary material in respect of Gaz Roofing’s application by close of business, 5 September 2017. It was noted that if there was a failure to comply with the direction, Mr Vanderplight-Lockley’s application would be dismissed.

[6] On 5 September 2017, Ms Vanderplight advised the Commission, via telephone, that they had decided to discontinue Mr Vanderplight-Lockley’s application and a Notice of Discontinuance would be sent in the mail that day.

[7] On 7 September 2017, the Commission attempted to contact Ms Vanderplight to confirm whether the Notice of Discontinuance had been sent, however this was unsuccessful and a voicemail message was left.

[8] To date, Mr Vanderplight-Lockley has not filed any material with the Commission in response to Gaz Roofing’s s.399A application and a Notice of Discontinuance has not been received.

[9] 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.

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

[11] As Mr Vanderplight-Lockley did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Vanderplight indicated that a Notice of Discontinuance would be filed, however no Notice has been filed in the Commission. Mr Vanderplight-Lockley has failed to respond to the Commission’s correspondence and shown a lack of willingness to prosecute his case. He has provided no explanation for his failure to comply with directions in relation to his extension of time application under s.394 of the Act and Gaz Roofing’s application under s.399A of the Act. In these circumstances, I will exercise my discretion under s.399A(1)(b) of the Act and dismiss Mr Vanderplight-Lockley’s application.

[13] An order giving effect to this decision will be issued.

DEPUTY PRESIDENT

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