Quintin Miller v MacDonnell Regional Council

[2016] FWC 9053

[2016] FWC 9053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Quintin Miller
v
MacDonnell Regional Council
(U2016/10770)

COMMISSIONER WILSON MELBOURNE, 19 DECEMBER 2016

Application for relief from unfair dismissal.

[1] On 30 August 2016, Mr Quintin Miller made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Miller’s employment had been terminated by the MacDonnell Regional Council (the Respondent) with effect from 11 August 2016.

[2] The matter was the subject of conciliation on 11 October 2016, however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Miller was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by close of business Friday, 11 November 2016.

[4] On 14 November 2016 Mr Miller sent emails to my chambers and Mr Stirk, the Respondent’s representative, indicating he required a further period to comply to the Directions. Mr Miller was subsequently granted an extension of time to file his material to close of business on Wednesday, 30 November 2016.

[5] Mr Miller did not file any material or contact the Commission with respect to filing the required documentation.

[6] On 2 December 2016, Mr Stirk, on behalf of the Respondent, filed a s.399A application seeking the dismissal of Mr Miller’s unfair dismissal application. The Respondent based their objection on grounds including;

(a) Mr Miller’s failure to comply with directions on two occasions; and

(b) the continuation of costs already incurred in preparation for the hearing.

[7] 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.

[8] On 5 December 2016, Mr Miller was sent correspondence by email and express post informing him of the Respondent’s section 399A application. Mr Miller was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business on 14 December 2016. Mr Miller was advised that if he failed to comply with this direction, his application would be dismissed.

[9] Mr Miller responded to the Commission’s correspondence on 14 December 2016 in terms that included an apology for his late response, together with an indication that he had recently been physically and emotionally ill.  His response included two extracts from the Respondent’s investigation into his conduct that led to his dismissal.  Contextually though, neither extract can be considered to be a submission by Mr Miller about why his dismissal was unfair.  In fact, rather than assisting his case, each extract reinforces the reasons the Respondent may have wished to dismiss him, and considered its actions in that regard to be justified.

[10] As a result, I find that Mr Miller has not responded positively to the Commission’s Directions for the filing of material that would cogently make out his case for unfair dismissal.  Notwithstanding his allusion to illness, and noting that he has not filed any evidence of that illness, I consider his lack of response to the Commission’s Directions to be unreasonable.

[11] Accordingly there are no grounds upon which I would be persuaded to not exercise my discretion to dismiss Mr Miller’s application. His application for unfair dismissal remedy will be dismissed, and an Order will be issued in conjunction with this decision to that effect.

COMMISSIONER

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