Paul Gates v L. Davies Transport Pty Ltd T/A L. Davies Transport

[2019] FWC 7883

[2019] FWC 7883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Gates
v
L. Davies Transport Pty Ltd T/A L. Davies Transport
(U2019/9269)

COMMISSIONER BISSETT MELBOURNE, 27 NOVEMBER 2019

Application for an unfair dismissal remedy – s.399A application to dismiss – application granted.

[1] On 20 August 2019 Mr Paul Gates (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). Mr Gates said that his employment had been terminated by L. Davies Transport Pty Ltd T/A L. Davies Transport (Respondent) on 30 July 2019.

[2] On 4 September 2019 the Respondent filed its Form F3 – Employer response to unfair dismissal application in which it raised a jurisdictional objection to the Applicant’s application. The Respondent objected on the basis that the business is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

[3] The matter was initially listed for a conciliation on 16 September 2019 but was later cancelled by the Commission due to operational reasons. A new Notice of Listing was issued to the parties confirming the rescheduled conciliation details for 8 October 2019. This was followed by a SMS text message sent to the parties on 7 October 2019 reminding them of the conciliation scheduled for the following day. Despite attempts to telephone the Applicant on 8 October 2019, the conciliation could not proceed as he could not be contacted.

[4] On 14 October 2019 Directions were issued to the parties and the matter was listed for a Jurisdiction (Small Business Fair Dismissal Code) and Arbitration Conference/Hearing for 16-18 December 2019. The Respondent was directed to file its material by no later than noon on Monday 28 October 2019 and the Applicant was directed to file his material by no later than noon on Monday 4 November 2019.

[5] Due to the Applicant’s failure to communicate with the Commission and the Respondent, the Respondent wrote to the Commission on 18 October 2019 requesting that the Applicant be directed to file his materials first.

[6] On 21 October 2019 Amended Directions were issued to the parties amending the order for the filing of material. The Applicant was directed to file his material by noon on Monday 28 October 2019 and the Respondent was directed to file its material by no later than noon on 4 November 2019.

[7] No material was received from the Applicant by noon on 28 October 2019.

[8] On 28 October 2019 at 3.11pm the Commission attempted to telephone the Applicant in relation to his overdue material. A voicemail message was left for the Applicant advising him that his material was overdue and requesting a return call. The Applicant did not return the Commission’s call.

[9] Later that day the Commission sent correspondence to the Applicant’s nominated email address reminding him that his materials were overdue and requesting that he contact the Commission as soon as possible. The Applicant was also advised that the matter was at risk of being listed for a Non-compliance hearing. The Applicant did not respond to this correspondence.

[10] On 29 October 2019 the Commission again unsuccessfully attempted to telephone the Applicant in relation to his overdue material. A voicemail message was left for the Applicant advising him that his material was overdue and that his matter was at risk of being listed for a Non-compliance hearing. The Applicant was urged to call the Commission.

[11] Correspondence was again sent to the Applicant’s nominated email address on 29 October 2019 regarding his failure to comply with directions and warning him that the matter was at risk of being listed for a Non-compliance hearing. The Applicant failed to respond.

[12] As no response was received, a Notice of Listing was sent to the parties on 30 October 2019 scheduling a Non-compliance Hearing for 1 November 2019.

[13] The Non-compliance Hearing proceeded before Deputy President Clancy on 1 November 2019. The Commission attempted to call the Applicant twice on his mobile phone number but he was unable to be contacted. The Respondent made an oral application pursuant to s.399A of the FW Act 2009 that the matter be dismissed due to the Applicant’s failure to comply with the directions of the Commission. Deputy President Clancy waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[14] Following the Non-compliance Hearing, correspondence was sent to the Applicant’s nominated email address advising him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by no later than 4.00 pm on 8 November 2019. The correspondence warned the Applicant that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[15] The Applicant did not file any material in opposition to the application to dismiss.

[16] To date, the Applicant has not filed any material with the Commission or responded to the Commission’s many attempts to contact him since the conciliation conference.
[17] Section 399A of the FW 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.

...

(1) The FWC may exercise its power under subsection (1) on application by the employer.

(2) This section does not limit when the FWC may dismiss an application.

[18] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. Taking into account the views provided by the Respondent, the Applicant’s election not to provide any views and the Applicant’s failures to attend (or seek any adjournment of) the Non-compliance Hearing, I consider it appropriate to determine the Respondent’s application on the papers.

[19] I am satisfied that the Applicant has failed to comply with a direction of the Commission relating to his application. That direction went to the date by which he was required to file and serve material in relation to her application for unfair dismissal. Further, I am satisfied that the Applicant failed to attend a Non-compliance Hearing in relation to his application and has failed to file any material in opposition to the application to dismiss.

[20] The power to dismiss an application if the Non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact him regarding his application. The Applicant has shown a lack of willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with directions or his non-attendance at the Non-compliance hearing.

[21] I have therefore decided to exercise my discretion under s.399A(1)(b) and dismiss the Applicant’s s.394 application. An order 1 giving effect to this decision will be issued with this decision.

COMMISSIONER

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