Rick Bonham v Jim Aitken & Partners No 1 Pty Ltd T/A Jim Aitken & Partners

[2019] FWC 7557

[2019] FWC 7557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rick Bonham
v
Jim Aitken & Partners No 1 Pty Ltd T/A Jim Aitken & Partners
(U2019/7058)

DEPUTY PRESIDENT BULL SYDNEY, 4 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] On 26 June 2019, Mr Rick Bonham (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he had been unfairly dismissed by Jim Aitken & Partners No 1 PTY LTD (the employer). The employer’s response confirmed the correct employer as Jim Aitken & Partners No 1 Pty Ltd. Pursuant to s.586 of the Act the application is amended to the extent that the true legal employer of the applicant is correctly identified.

Background

[2] The applicant’s originating application (Form F2) stated that the applicant was represented in the matter by Unfair Dismissal Experts Pty Ltd (Unfair Dismissal Experts). The employer’s response and subsequent Notice of Representative Commencing to Act (Form F53) filed on 29 July 2019 named the Real Estate Employers’ Federation (REEF) as the representative for the employer. 

[3] The matter was listed for telephone conciliation before a conciliator of the Commission on 31 July 2019. Prior to the conciliation, the Commission received email correspondence on 29 July 2019 from Mr Lachlan Yule, Consultant for Unfair Dismissal Experts, which stated as follows:

“Dear Sir/Madam,

Re U2019/7058

I refer to the above matter and confirm we act on behalf of Rock Bonham (the Applicant).

My name is Lachlan Yule and I will be the representative on the day of the conciliation and can be contacted on [phone number removed].

The Applicant can be contacted on [phone number removed].

Kind regards,

Lachlan Yule
Consultant - Unfair Dismissal Experts Pty Ltd”

[4] The conciliation on 31 July 2019 was unsuccessful, and the application was subsequently referred by the Commission’s Conciliator for arbitration.

[5] On 2 September 2019, a Notice of Listing was issued to the parties which contained directions providing a timetable for the parties to file and serve evidentiary materials
(the Directions). The Notice of Listing also contained listing dates for a Telephone Mention on 4 September 2019 at 10:00am and a subsequent Hearing on 29 October 2019 at 10:00am.

[6] On 4 September 2019 shortly before the Telephone Mention was due to commence at 10:00am, my Associate contacted the applicant’s representative identified in the applicant’s application (Form F2), Mr Stephen Gaffney of Unfair Dismissal Experts, by telephone to commence the Telephone Mention. Mr Gaffney indicated he no longer represented the applicant and that he had filed a Notice of Representative Ceasing to Act (Form F54) with the Commission on 7 August 2019.

[7] At 10:11am on 4 September 2019, Mr Gaffney forwarded to Chambers an email he had sent to the Registry on 7 August 2019 which attached a completed and signed Form F54 confirming that Unfair Dismissal Experts no longer represented the applicant in this matter. 

[8] At approximately 10:25am on 4 September 2019, my Associate contacted the applicant by telephone to inform him that Unfair Dismissal Experts had confirmed with the Commission that they no longer acted for the applicant in the matter. The applicant stated words to the effect that he was unaware that Unfair Dismissal Experts no longer represented him. He stated he was under the impression that Unfair Dismissal Experts would continue to represent him for the arbitration part of his application.

[9] The applicant, however, confirmed he would appear on his own behalf for the Telephone Mention and would confirm whether he is represented by Unfair Dismissal Experts as soon as possible.

[10] The Telephone Mention subsequently proceeded at approximately 11:00am on 4 September 2019, and the applicant appeared on his own behalf with the employer and employer’s representative also appearing by telephone. During the Telephone Mention, the Commission confirmed the Directions with the parties, which are as follows:

“1. The Applicant (Mr Rick Bonham) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of their application in this matter by no later than 4.00pm on 25 September 2019.

2. The Respondent (Jim Aitken & Partners No 1 Pty Ltd T/A Jim Aitken & Partners) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 16 October 2019.

3. The Applicant (Mr Rick Bonham) is directed to file with the Fair Work Commission, and serve on the Respondent, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by no later than 4.00pm on 23 October 2019.

4. If either party wishes to vary these directions, they can make an application to do so in writing directly to the Member's Chambers.”

[11] Immediately following the Telephone Mention, my Associate conducted an audit of the file for the matter and confirmed it appeared a copy of the Form F54 filed by Unfair Dismissal Experts on 7 August 2019 had been received by the Commission but not filed appropriately on the Commission’s file and so Chambers had not previously received a copy of the Form F54 nor been aware of its existence.

[12] On 6 September 2019, the employer’s representative Mr James Burton of REEF wrote to chambers by email attaching a letter which stated that a key witness for the employer would not be available on the listed hearing date of 29 October 2019. The applicant was copied into this email correspondence; however Unfair Dismissal Experts were not copied.

[13] On 11 September 2019, chambers responded to the employer confirming that the matter remained listed for Hearing on 29 October 2019 at 10:00am and that the employer’s key witness would be heard when they returned from overseas. The applicant was copied into this correspondence; however Unfair Dismissal Experts were not copied as they were no longer on the record as acting for the employer after it was confirmed they had filed a Form F54.

[14] On 12 September 2019, the employer’s representative confirmed receipt of chambers’ email above and acknowledged that the date for the Hearing remained unchanged. The applicant was again copied into this correspondence by the employer.

[15] The Commission did not receive from the applicant any outline of submissions, witness statements and other documentary material by the deadline of 4.00pm on 25 September 2019 in accordance with Direction 1 of the Directions contained in the Notice of Listing issued to the parties on 2 September 2019.

[16] On 26 September 2019, the employer wrote to chambers stating the applicant was due to file and serve his evidence by 4:00pm on Wednesday 25 September 2019 and the Respondent had not yet received any evidence from the applicant. The employer requested that the applicant’s application be dismissed pursuant to s.399A(b) of the Act as a result of the applicant’s failure to comply with Direction 1 of the Directions. The employer did not copy the applicant into its email correspondence.

[17] On 30 September 2019, Chambers received a further email from the employer indicating that employer had still not received the applicant’s evidence despite it being due to be filed by 4:00pm on 25 September 2019. The employer again did not copy the applicant into this correspondence.

[18] On 2 October 2019, Chambers emailed the applicant informing him that the Commission had not received any outline of submissions, witness statements or evidentiary materials from the applicant by the deadline of 4:00pm on 25 September 2019 in accordance with Direction 1 of the Directions. A copy of the Directions was attached to the email. Chambers also attached copies of the employer’s two emails referred to above in which the employer sought to have the applicant’s application dismissed pursuant to s.399A of the Act and noted that the applicant had not originally been copied into these emails from the employer.

[19] Chambers also confirmed with the applicant that as it appeared that he had failed to comply with the Directions, the Commission intended to dismiss his application pursuant to s.399A of the Act. Chambers requested the applicant to advise the Commission by no later than close of business on 9 October 2019 why his unfair dismissal application should not be dismissed pursuant to s.399A of the Act. 

[20] Chambers received a call from the employer’s representative Mr Burton on 25 October 2019, in which he enquired whether the Hearing listed on 29 October 2019 would proceed as listed.

[21] On 28 October 2019, in the absence of any communication from the applicant in the matter since the Telephone Mention on 4 September 2019, the Hearing on 29 October was cancelled. A Notice of Listing Cancellation was issued to the parties.

[22] As at the date of this decision, the Commission has not received any correspondence from the applicant since the Telephone Mention on 4 September 2019 despite the applicant being requested to do so. The applicant has been advised that his failure to comply with the Directions may lead to his unfair dismissal application being dismissed.

Legislation

[23] 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.

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.”

Decision

[24] I am satisfied pursuant to s.399A(1)(b) of the Act that the applicant has unreasonably failed to comply with Direction 1 of the Directions issued to the parties in this matter by the Commission on 2 September 2019 to file and serve his outline of submissions, witness statements and any evidentiary materials by no later than 4:00pm on 25 September 2019.

[25] I am satisfied the applicant has unreasonably failed to respond to the Commission’s correspondence as directed. No explanation has been provided by the applicant for his lack of response to the Commission’s correspondence.

[26] In accordance with s.399A of the Act, the applicant’s unfair dismissal application for is dismissed.

DEPUTY PRESIDENT

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