Nick Oakenfull v Cordwell Resources Pty Ltd

[2018] FWC 3798

[2018] FWC 3798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nick Oakenfull
v
Cordwell Resources Pty Ltd
(U2018/3687)

COMMISSIONER BISSETT MELBOURNE, 27 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 9 April 2018, Mr Nick Oakenfull 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 by Mr Oakenfull’s representative at Unfair Dismissals Australia. Mr Oakenfull said that his employment had been terminated by Cordwell Resources Pty Ltd (Cordwell) on 28 March 2018.

[2] On 18 April 2018, Cordwell filed its Form F3 – Employer response to unfair dismissal application in which it raised a jurisdictional objection to Mr Oakenfull’s application. Cordwell objected on the basis that the business is a small business, and the dismissal was consistent with the Small Business Fair Dismissal Code.

[3] On 19 April 2018, Cordwell wrote to the Commission and advised it would like to proceed directly to a formal hearing and not participate in conciliation.

[4] On 23 April 2018, directions were issued by the Commission. Cordwell was directed to file material in support of its jurisdictional objection by no later than noon on 8 May 2018. Mr Oakenfull was directed to file material in opposition to the jurisdictional objection and in support of his application by no later than noon on 15 May 2018. Cordwell was directed to file material in opposition to the application and any other material in reply by no later than noon on 22 May 2018. The matter was listed for hearing from 18 to 20 June 2018.

[5] Cordwell requested a one day extension and filed material on 9 May 2018. The extension was granted, and accordingly the directions were amended such that Mr Oakenfull was also afforded an additional day to file his material, with his material due by no later than noon on 16 May 2018 and Cordwell’s material in reply by no later than noon on 23 May 2018.

[6] As no material was received from Mr Oakenfull, in the afternoon of 17 May 2018 the Commission attempted to call his representative and left a voicemail message requesting a return call to confirm the status of the submissions. On the same afternoon, an email was sent to Unfair Dismissals Australia advising that any request for an extension to file submissions should be made as soon as possible. On 18 May 2018, a further follow up email was sent to Unfair Dismissals Australia.

[7] On 22 May 2018, Unfair Dismissals Australia advised it was no longer representing Mr Oakenfull. The Commission then attempted to call Mr Oakenfull, however this was unsuccessful and a voicemail message was left requesting a return call. An SMS message was also sent to Mr Oakenfull reminding him that written submissions were due to be filed by 16 May 2018 and a return call was sought. Finally, an email was sent to Mr Oakenfull advising that if no response was received from him by 4.00pm on 23 May 2018, the matter would be listed for a non-compliance hearing on 25 May 2018.

[8] On 23 May 2018, Cordwell filed its final submissions. As no response was received from Mr Oakenfull to the email of 22 May 2018, a Notice of Listing was sent to the parties confirming the scheduling of a non-compliance hearing on 25 May 2018.

[9] On 24 May 2018, an SMS message was sent to Mr Oakenfull confirming the matter was listed for a non-compliance hearing the following day and that he could expect a telephone call at 11.00am for the commencement of the hearing.

[10] The non-compliance hearing proceeded before Deputy President Colman on 25 May 2018. Mr Oakenfull appeared for himself, and Mr Cordwell and Ms Redman appeared for Cordwell. Mr Oakenfull advised the Deputy President that he was prepared to go through with his application for unfair dismissal remedy. The Deputy President put Mr Oakenfull on notice that he would need to file and serve material and Mr Oakenfull confirmed he wished to proceed. The Deputy President determined that new directions would be issued, which would require Mr Oakenfull to file his material by Friday, 1 June 2018. Cordwell did not object to this course.

[11] A Notice of Listing confirming the hearing dates and requirement of Mr Oakenfull to file his material by noon on 1 June 2018 was sent to parties on 25 May 2018. The document was sent to Mr Oakenfull via email and post.

[12] As no material was received from Mr Oakenfull, on 6 June 2018 the Commission attempted to telephone him, however this was unsuccessful and a voicemail message was left seeking a return call. An email was then sent advising Mr Oakenfull that if there was no response by close of business that day, the matter would be listed for a non-compliance hearing on 8 June 2018.

[13] On 7 June 2018, a further voicemail message was left for Mr Oakenfull in relation to the non-compliance hearing due to take place the following day. A Notice of Listing was then sent to parties confirming the non-compliance hearing would be proceeding at 10.30am on 8 June 2018. An SMS message was also sent to Mr Oakenfull confirming the matter was listed for a non-compliance hearing the following day and he could expect a telephone call at 10.30am for the commencement of the hearing.

[14] The non-compliance hearing proceeded before Deputy President Masson on 8 June 2018. Mr Oakenfull could not be contacted. Cordwell made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Oakenfull’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Cordwell’s oral application. Following the non-compliance hearing, correspondence was sent to Mr Oakenfull informing him of Cordwell’s s.399A application. Mr Oakenfull was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 15 June 2018. The correspondence stated that if the Commission did not receive a response, Mr Oakenfull’s application for relief from unfair dismissal would be dismissed.

[15] To date, Mr Oakenfull has not filed any material with the Commission.

[16] 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.

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

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

[19] The power to dismiss an application if the non-compliance was unreasonable is discretionary. At the non-compliance hearing before Deputy President Colman on 25 May 2018, Mr Oakenfull was put on notice about the requirement to file material by 1 June 2018. However, apart from initially filing his application and advising Deputy President Colman he wished to proceed with his matter, Mr Oakenfull has shown no willingness to prosecute his case and has provided no explanation for either his failure to comply with directions or his non-attendance at the non-compliance hearing on 8 June 2018. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Oakenfull’s application. An order giving effect to this decision will be issued concurrently.

COMMISSIONER

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