Peter Frewen v Jungarni-Jutiya Indigenous Corporation trading as Jungarni-Jutiya Indigenous Corporation

[2018] FWC 4551

[2018] FWC 4551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Frewen
v
Jungarni-Jutiya Indigenous Corporation trading as Jungarni-Jutiya Indigenous Corporation
(U2018/5389)

DEPUTY PRESIDENT BINET PERTH, 2 AUGUST 2018

Application for an unfair dismissal remedy – failure to comply with directions – application dismissed.

[1] On 24 May 2018, Mr Peter Frewen (Mr Frewen) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging he was unfairly dismissed by Jungarni-Jutiya Indigenous Corporation (Jungari).

[2] The matter was listed for a telephone conciliation before a FWC conciliator on 21 June 2018 but the issues in dispute could not be resolved.

[3] Mr Frewen’s Application was subsequently allocated to me, and I conducted a conciliation conference with the parties on 12 July 2018 (Conference), however the issues in dispute remained unresolved. During the course of the conference I explained to Mr Frewen that if the matter proceeded to a hearing then he would be required to file various materials including liaising with the Respondent’s representatives to file an Agreed Statement of Facts.

[4] My Chambers subsequently issued directions to the parties on 18 July 2018, noting the Application was to be determined by arbitration (First Directions).

[5] The First Directions required the parties to file an Agreed Statement of Facts by close of business on 26 July 2018. At 6.10pm on 26 July 2018, my Chambers received notification from Jungarni’s representatives that they had attempted to contact Mr Frewen on both 24 July 2018 and 26 July 2018 in relation to a draft statement of facts they had prepared, but had received no response from Mr Frewen.

[6] On 27 July 2018, I issued a direction to Mr Frewen stating that the parties had been granted an extension in which to file the Agreed Statement of Facts and that he should file a response to Jungarni’s representatives by 5pm 27 July 2018, indicating which facts he did and did not agree to in their draft statement of facts (Second Direction). I indicated that if he did not comply with the direction, Jungarni would be invited to apply to have the Application dismissed pursuant to section 399A of the FW Act.

[7] Section 399A of the FW Act provides:

“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.

Note 1: for another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[8] No correspondence was received from Mr Frewen by close of business on 27 July 2018. On 30 July 2018, Jungarni’s representatives indicated they wished to apply to have Mr Frewen’s Application dismissed pursuant to s.399A(1)(b) given that Mr Frewen had failed to comply with the direction to file an Agreed Statement of Facts and with the direction to file a response to the Agreed Statement of Facts prepared by the Respondent’s representatives.

[9] On 30 July 2018, Jungarni’s representatives were invited to file submissions setting out the grounds for dismissal and any evidence or authorities upon which they rely. Mr Frewen was invited to make submissions providing reasons as to why the FWC should not dismiss his application and any documentary evidence in support of those reasons. Both parties were directed to file their respective material by close of business 31 July 2018.

[10] On the morning of 31 July 2018, my Chambers received an email from Mr Frewen stating:

“I don’t really understand what I’m supposed to do. I thought all my stuff was before the FWC?”

My Chambers replied to Mr Frewen’s query via email, reiterating what was explained to him at the Conference, namely that he was required to file the documentation specified in the First Directions, the first item of which was an Agreed Statement of Facts. The email reiterated the previous direction that Mr Frewen should provide reasons and supporting documentation as to why the Application should not be dismissed.

[11] Later the same day, Jungarni’s representatives filed their application to have Mr Frewen’s Application dismissed. They provided copies of their emails dated 24 July 2018 and 26 July 2018, requesting a response to their draft statement of facts. They also provided a copy of that draft statement of facts.

[12] Jungarni’s representatives made numerous submissions as to why Mr Frewen’s failure to comply with directions could be characterised as unreasonable. Namely, that at the time of the conference on 12 July 2018 and at the time that directions were issued on 18 July 2018, Mr Frewen was legally represented. They submitted that the directions were clear in their terms. They further submitted that Mr Frewen had provided no explanation as to why he had not responded to their emails of 24 July 2018 and 26 July 2018, nor any explanation as to why he had failed to comply with the relevant directions.

[13] No further correspondence was received from Mr Frewen on 31 July 2018 and no further correspondence has been received from Mr Frewen at the time of writing this decision.

[14] In the circumstances of this matter, I am satisfied Mr Frewen has unreasonably failed to comply with a direction issued by the FWC, given the clarity and the number of directions he was provided, and that I ascertained he had understood the requirement to file further documentation with the FWC at the conciliation conference I conducted on 12 July 2018.

[15] Consequently, the Application is dismissed pursuant to section 399A(1)(b) of the FW Act. An Order giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR609657>