Rhys Elliott v C.J Miller & J Miller t/a Madden Auto Salvage & Mechanical

[2021] FWC 6458

[2021] FWC 6458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rhys Elliott
v
C.J Miller & J Miller t/a Madden Auto Salvage & Mechanical
(U2021/9521)

DEPUTY PRESIDENT MANSINI MELBOURNE, 24 NOVEMBER 2021

Application for an unfair dismissal remedy.

[1] Mr Rhys Elliott (Applicant) has applied for an unfair dismissal remedy in relation to the dismissal of his employment with C.J Miller & J Miller (Respondent) pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined to dismiss the application due to the Applicant’s unreasonable failures to attend proceedings and comply with directions of the Commission in relation to the application. The reasons for this decision follow.

Context

[3] The application was filed on 26 October 2021 by the Applicant’s then representative, Unfair Dismissals Australia Pty Ltd.

[4] As the Respondent did not consent to participate in a staff conciliation the matter was referred for determination. The matter was subsequently listed for procedural mention (to take place on 10 November 2021). The notice of listing was sent to the Applicant, his then representative and the Respondent at their respectively nominated email addresses for service.

[5] On 8 November 2021, the Applicant’s representative advised that it no longer represented the Applicant and would not be participating in the procedural mention.

[6] On 10 November 2021, the Applicant did not attend the mention at the listed time and was not able to be reached on his nominated telephone number at the commencement time. As the Applicant was not able to be reached, the mention did not proceed.

[7] Subsequently on 10 November 2021, email correspondence was sent to the Applicant and the Respondent at their respectively nominated email addresses regarding the Applicant’s non-attendance at the Commission proceeding. By that correspondence, the Applicant was directed to respond by no later than 10:00am on 12 November 2021 and was advised that any non-compliance or failure to otherwise correspond with the Commission by the directed time and date may result in the matter proceeding to be determined without hearing further from the Applicant.

[8] No correspondence was received from the Applicant by 10:00am on 12 November 2021.

[9] On 15 November 2021, the Respondent’s representative emailed the Commission and attached a s.399A application to dismiss the Applicant’s unfair dismissal claim. The Applicant was copied, on his nominated email address for service.

[10] On 19 November 2021, the Commission issued directions which required the Applicant to file any response to the Respondent’s s.399A application by 4:00pm 22 November 2021. That correspondence was sent to the Applicant and the Respondent at their respectively nominated email addresses for service. It attached a copy of the s.399A application and also contained the following:

“Important note: any failure to respond to these directions or file materials in accordance with these directions may result in the Commission proceeding to dismiss the unfair dismissal claim pursuant to s.399A. If you need more time to respond, you should direct this request with your reasons to [email protected].”

[11] Also on 19 November 2021, an SMS was sent to the Applicant’s nominated telephone number, as follows:

“The Fair Work Commission has sent Directions regarding non-compliance in U2021/9521 to your email address.

Important note: any failure to respond to these directions or file materials in accordance with the directions may result in the Commission proceeding to dismiss the unfair dismissal claim pursuant to s.399A.

If you have any questions regarding this matter please call 03 8656 4537.

DO NOT REPLY BY SMS”

[12] As at the date of this decision, the Applicant has not filed any material with the Commission or corresponded with the Commission at all since his failure to attend the proceedings on 10 November 2021.

Statutory Context

[13] An unfair dismissal application made under s.394 may be dismissed if the Commission is satisfied that the applicant has unreasonably failed to attend a hearing or failed to comply with a direction or order of the Commission relating to the application (s.399A(1)(a) and (b)).

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary and may only be exercised on application by the employer (s.399A(2)).

[15] The Commission is not required to hold a hearing except as provided by the Act (s.593). In the context of an unfair dismissal application, the Commission must not hold a hearing unless it considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter (s.399).

Consideration and conclusion

[16] The Respondent, being the employer party to the application, has made an application for the Commission to exercise its discretion to dismiss the application pursuant to s.399A.

[17] Taking into account the views provided by the Respondent, the Applicant’s election not to provide any views on the matter and the Applicant’s failure to attend (or seek any adjournment of) Commission proceedings, I consider it appropriate to determine the Respondent’s application on the papers.

[18] The Applicant has not attended the proceedings in this matter. He has not complied with directions of the Commission in relation to his application. He has not corresponded with the Commission despite numerous attempts made by the Commission to contact him regarding his application. Further, the Applicant has provided no explanation to the Commission for his failures to attend or comply and has not sought any dispensation, amendments or adjournments.

[19] In these circumstances, I am satisfied that the Applicant has unreasonably failed to attend a hearing held by the Commission and unreasonably failed to comply with directions of the Commission relating to his application. Accordingly, the application is dismissed pursuant to s.399A.

DEPUTY PRESIDENT

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