Phillip Stone v Fantastic Holdings Limited T/A Original Mattress Factory

[2017] FWC 4051

[2017] FWC 4051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip Stone
v
Fantastic Holdings Limited T/A Original Mattress Factory
(U2017/5359)

DEPUTY PRESIDENT CLANCY MELBOURNE, 4 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 19 May 2017, Mr Phillip Stone made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Stone said he was notified of his dismissal on 19 May 2017, with it taking effect the same day.

[2] The matter was initially listed for conciliation on 8 June 2017, however it could not proceed as Mr Stone was unavailable. The matter was re-listed for conciliation on 21 June 2017, though the matter did not resolve at that time. Consequently, directions were issued and Mr Stone was required to file an outline of argument, outline of argument: objections, statement(s) of evidence and a document list by no later than noon on 17 July 2017.

[3] On 10 July 2017, in accordance with directions, Fantastic Holdings Limited T/A Original Mattress Factory (OMF) filed its material, a copy of which was forwarded to Mr Stone. The following day, Mr Stone sent an email to the Fair Work Commission in response to OMF’s material, stating:

“All this is untrue. They bullied me and as a result they forced me to resign.

This is how they treat people by manipulating the facts.

I stand with my Constructive Dismissal and wish to continue.”

[4] On 14 July 2017, an SMS message was sent to Mr Stone, reminding him that his written submissions were due to be filed on the following Monday, 17 July 2017. Mr Stone was advised if he had any questions, he could call the Unfair Dismissal Case Management Team.

[5] As no material had been received, in the afternoon of 17 July 2017 a voicemail message was left for Mr Stone regarding the outstanding submissions and a request was made for a return call as soon as possible. The following day, an email was sent to Mr Stone confirming no material had been filed. Mr Stone was asked to contact the Commission and advise when the submissions would be filed and in the absence of such advice, it was noted that the matter would be listed for a non compliance hearing on 21 July 2017.

[6] On 19 July 2017, a further voicemail was left for Mr Stone, limited to ten seconds by his telephone. The same day, Mr Stone sent an email to the Commission advising “I have been very sick and not able to do much.” The Commission attempted to contact Mr Stone the following day to advise the non compliance hearing would be proceeding, however there was no answer and a short voicemail was left.

[7] The non compliance hearing proceeded before me on 21 July 2017. Mr Stone did not attend the hearing as he could not be contacted. OMF made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Stone had failed to comply with a direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted OMF’s oral application. Correspondence was then sent to Mr Stone informing him of OMF’s s.399A application. Mr Stone was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Friday, 28 July 2017. This correspondence was sent to Mr Stone via email and post.

[8] To date, Mr Stone has not filed any material with the Commission.

[9] 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.

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

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

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. On 19 July 2017, Mr Scott advised the Commission he has been very sick and unable to do much. In subsequent correspondence sent to him following the non compliance hearing, Mr Scott was advised that if he has been unwell, the Commission requires a medical certificate, which was to be filed by close of business, 28 July 2017. In addition to not providing evidence of his illness, Mr Scott has provided no explanation for his non-attendance at the non compliance hearing. It is Mr Scott who has made the application for remedy for unfair dismissal and he must bear responsibility for attending to the tasks required of him in the Commission’s management of his claim. In these circumstances, where no submissions have been filed in support of his application for unfair dismissal and no evidence has been provided of his illness, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Scott’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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