Nicholas Hutchinson v Beninati Group P/L T/A Southern Tile

[2018] FWC 4231

[2018] FWC 4231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Hutchinson
v
Beninati Group P/L T/A Southern Tile
(U2018/4583)

COMMISSIONER BISSETT MELBOURNE, 18 JULY 2018

Application for an unfair dismissal remedy.

[1] On 27 April 2018, Mr Nicholas Hutchinson 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). Mr Hutchinson said his employment had been terminated by Beninati Group Ptd Ltd t/a Southern Tile (Southern Tile) on 19 March 2018.

[2] On 4 May 2018, Mr Hutchinson requested that all correspondence from the Commission be sent to him via post.

[3] The matter was listed for conciliation on 31 May 2018 and did not resolve. Consequently, on 6 June 2018, directions were issued to the parties and the matter was listed for an Extension of Time and Jurisdiction (Minimum Employment Period – Small Business) hearing. Mr Hutchinson was directed to file his extension of time material by no later than noon on 18 June 2018 and Southern Tile was to file its reply material by no later than noon on 28 June 2018. Southern Tile was directed to file its jurisdictional objection material by no later than noon on 18 June 2018 and Mr Hutchinson was directed to file his reply material by no later than noon on 28 June 2018.

[4] On 14 June 2018, Southern Tile filed material.

[5] On 18 June 2018, amended directions were issued to the parties. Mr Hutchinson was directed to file his extension of time material by no later than noon on 25 June 2018 and his reply material by no later than noon on 5 July 2018. The amended directions, templates to assist with the filing of materials, and a copy of Southern Tile’s material were sent to Mr Hutchinson via express post. A review of the express post tracking ID indicates that the material was delivered to Mr Hutchinson’s address on 20 June 2018.

[6] On 26 June 2018, the Commission attempted to telephone Mr Hutchinson on his mobile phone regarding his overdue submissions. This was unsuccessful and a voicemail message, which was converted to a text message, was left seeking a return call. A call was also made to Mr Hutchinson’s landline phone. This was also unsuccessful and a voicemail message was left, however it is unclear whether this message was successfully recorded. Further, a text message was sent to Mr Hutchinson advising that his submissions were late and that a non-compliance hearing would be listed if he did not file his material or seek an extension to file his material by noon on 27 June 2018.

[7] On 27 June 2018, contact was made with Mr Hutchinson, who advised his material had been prepared and requested that the Commission telephone the lawyer from the community legal centre who had been assisting him with preparing his submissions. The Commission then made contact with the lawyer, who advised he was not representing Mr Hutchinson, but rather had been assisting him with a number of other matters unrelated to the application. A further telephone call was then made to Mr Hutchinson, requesting that he contact the Commission.

[8] Later on 27 June 2018, a Notice of Listing was sent to parties confirming the scheduling of a non-compliance hearing for 29 June 2018. The Notice of Listing was sent to Mr Hutchinson via express post. The express post tracking ID indicates delivery was made on 28 June 2018. Additionally, a text message was sent to Mr Hutchinson advising him that the matter had been listed for a non-compliance hearing.

[9] On 28 June 2018, Mr Hutchinson telephoned the Commission and was advised that a non-compliance hearing had been scheduled on 29 June 2018. Mr Hutchinson confirmed that he would attend the hearing and provided his contact number.

[10] The non-compliance hearing proceeded before Deputy President Masson on 29 June 2018. Mr Hutchinson could not be contacted. Southern Tile made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Hutchinson’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Southern Tile’s oral application.

[11] Following the non-compliance hearing, correspondence was sent to Mr Hutchinson, via post, advising him of Southern Tile’s s.399A application. Mr Hutchinson was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by close of business on 6 July 2018.

[12] To date, Mr Hutchinson has not filed any material with the Commission.

[13] 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.’

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

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

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Apart from initially filing his application, referring the Commission to the lawyer who was assisting him with his material and advising the Commission that he would attend the non-compliance hearing, Mr Hutchinson has failed to engage with the Commission’s processes for progressing his case. He has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Hutchinson’s application.

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

COMMISSIONER

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