Peter Combs v Face2face Recruitment P/L

[2023] FWC 1604

[2023] FWC 1604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Combs
v

Face2face Recruitment P/L

(U2023/2813)

DEPUTY PRESIDENT O’KEEFFE PERTH, 30 JUNE 2023

Application for an unfair dismissal remedy - application dismissed pursuant to s.399A of the Act.

1. On 3 April 2023, Mr Peter Combs (Applicant) made an application to the Fair Work Commission (FWC) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant submits that his employment had been terminated by Face2Face Recruitment Pty Ltd (Respondent) on 20 March 2023.

1. On 19 April 2023 the Respondent lodged a form F3 which raised jurisdictional objections to the Applicant’s application.  On 16 May 2023, the chambers of Vice President Catanzariti emailed the Applicant, asking him to provide by 5.00pm on 19 May 2023 a written response to the Respondent’s claim that his application had been lodged out of time.  The Applicant failed to comply with this requirement. 

1. On 22 May 2023 a further email was sent to the Applicant directing him to respond to the email of 16 May 2023 by 5.00pm on 24 May 2023.  The Applicant provided the following response on 24 May 2023:

“Good Afternoon,

I will need another 7 days for my response.

I am currently seeking legal advice.

Regards,

Peter Combs”

1. Despite the somewhat brusque nature of this request for an extension of time, the Applicant was advised on 25 May 2023 that he was granted an extension until 1 June 2023 for the lodgement of the required information.  Despite this, the Applicant did not comply until 5 June 2023. 

1. On 7 June 2023 the matter was allocated to my chambers.  As there was an out of time jurisdictional objection, on 12 June 2023 I issued a notice of listing and directions for a hearing to determine this objection.  The directions required the Respondent to file submissions by 4.00pm on 19 June 2023.  The Respondent complied with this direction. 

1. The Applicant was required to file his submissions by 4.00pm on 26 June 2023.  On 20 June 2023 the Applicant emailed my chambers as follows:

“Good afternoon,

I am still awaiting legal advice to come back to me on this.

I will need done (sic) additional time please.

Regards,

Peter Combs”

1. On 22 June 2023 my chambers emailed the Applicant as follows:

“Dear Mr Combs,

The Deputy President has asked for more information before considering your request for an extension of time to lodge your materials.  For any extension to be granted, you will need to ensure:

(1) That you serve your request upon the Respondent

(2) That your request specifies the length of your proposed extension

(3) Detailed reasons for the request are provided

Kind regards

Catriona Ellisdon

Associate to Deputy President O’Keeffe”

1. The Applicant provided no response to this email.

1. On 27 June 2023, my chambers sent the Applicant a non-compliance email, noting that he had failed to comply with directions and requested that he respond by 5.00pm on 28 June 2023 explaining why he had failed to comply and providing his submissions.  No response was received by that time. 

1. On 29 June 2023 the Applicant emailed my chambers as follows:

“Dear Ms Ellisdon,

My apologies to all parties on the delay in my submissions.

I will be submitting the reason and request for extra time on my evidence statement and the evidence statement itself by 5:00pm 29 June 2023.

As a lay person I am having considerable challenges with the learning curve and reading/research needed to represent myself.

Regards,

Peter Combs”

1. Also on 29 June 2023 the Respondent made application for an order under s399A of the Act to dismiss the application.  My chambers sent an email to the Applicant, asking him to respond to this application by providing in writing by 5.00pm on 29 June 2023 his reasons for non-compliance.  I note that in any case the Applicant had set himself this deadline in his email earlier that day.

1. No response was received from the Applicant by the required time, or by 2:25pm on 30 June 2023, which I note was a Friday.  The matter was due to be heard on 5 July 2023. 

1. 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.”

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to comply with a number of directions made by the FWC and has proven to be very unreliable in terms of responding to correspondence.  In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application.  An order giving effect to this decision will issue today.

DEPUTY PRESIDENT

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