Richard Fleet v Complete Tyre Solutions

[2017] FWC 6456

[2017] FWC 6456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Fleet
v
Complete Tyre Solutions
(U2017/10433)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 27 September 2017, Mr Richard Fleet made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Fleet said he was notified of his dismissal on 12 September 2017, with it taking effect the same day.

[2] The matter was listed for conciliation on 20 October 2017, however it could not take place as Complete Tyre Solutions declined to participate. Consequently, directions were issued and the matter was listed for Arbitration Conference/Hearing. Mr Fleet was directed to file an Outline of Argument, Statement of Evidence and Document List in support of his application by no later than noon on Monday 20 November 2017.

[3] On 17 November 2017, the Fair Work Commission (the Commission) sent a Short Message Service (SMS) reminder to Mr Fleet that his written submissions were due to be filed on 20 November 2017. As no material had been received, on 21 November 2017 the Commission telephoned Mr Fleet and advised that if he did not request an extension to file material by 22 November 2017 his matter would be listed for non-compliance hearing. Mr Fleet said he would send through an extension request via email later that day.

[4] On 22 November 2017, the Commission telephoned Mr Fleet and advised that as an extension request had not been received, if he did not provide any written correspondence his matter would be listed for non-compliance hearing. Mr Fleet requested that the Commission send him an email to this effect. Subsequently, an email containing submission templates and information as to requesting an extension to file material was sent to Mr Fleet.

[5] As no response to this correspondence had been received, in the afternoon of 22 November 2017 the Commission made two additional attempts to contact Mr Fleet via telephone, however these were unsuccessful and a voicemail message was left seeking he urgently return the Commission’s call. A follow up email was sent to Mr Fleet requesting that he contact the Commission as soon as possible and that the matter would otherwise be listed for a non-compliance hearing.

[6] A further attempt to telephone Mr Fleet regarding his overdue submissions was made by the Commission on 23 November 2017, however this was unsuccessful and a voicemail message could not be left. Later that day, in the absence of a response from Mr Fleet, a non-compliance hearing for 24 November 2017 was listed.

[7] The non-compliance hearing proceeded before Commissioner Wilson on 24 November 2017. Three attempts were made to contact Mr Fleet and a voicemail message was left on each occasion. Complete Tyre Solutions made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Fleet had failed to comply with a direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Complete Tyre Solutions’ oral application. Correspondence was then sent to Mr Fleet informing him of Complete Tyre Solutions’ s.399A application. Mr Fleet was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 1 December 2017. This correspondence was sent to Mr Fleet via email and post.

[8] To date, Mr Fleet 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 Fleet did not file any material in opposition to the application to dismiss, I will determine the application on the papers. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Fleet has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application, Mr Fleet has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Fleet’s application.

[12] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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