Ricky Corney v Bunnings Group Limited T/A Bunnings Warehouse

[2017] FWC 2792

[2017] FWC 2792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ricky Corney
v
Bunnings Group Limited T/A Bunnings Warehouse
(U2017/1313)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 MAY 2017

Application for an unfair dismissal remedy.

[1] On 8 February 2017, Mr Ricky Corney made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Corney said his dismissal took effect on 20 January 2017. In its Form F3 – Employer Response, Bunnings Group Limited (Bunnings) raised a jurisdictional objection that Mr Corney resigned from his employment and was not dismissed.

[2] The matter was listed for conciliation on 15 March 2017, however it could not take place as Mr Corney was unavailable at the scheduled time. Consequently, directions were issued and the matter was listed for hearing.

[3] Bunnings was directed to file an outline of argument, statement of evidence and document list by noon on Monday, 24 April 2017. Mr Corney was directed to file his material by noon on Tuesday, 2 May 2017.

[4] On 26 April 2017, Ms Kura Hosken of Bunnings left a message with the Fair Work Commission, advising that Bunnings intended to file its material the following morning, however no material was filed.

[5] On 27 April and 3 May 2017, messages were left with Mr Corney to follow up the status of his material that had not been filed. Email correspondence was sent to Mr Corney on 3 May 2017, confirming no material had been filed and that if no advice was received from him, the matter would be listed for a non compliance hearing on 5 May 2017.

[6] Further, on 3 May 2017 the Victorian Chamber of Commerce and Industry commenced acting for Bunnings. It advised that Bunnings wished to withdraw the previously raised jurisdictional objection.

[7] The matter was listed for a non compliance hearing before Deputy President Gooley on 5 May 2017. Despite attempts to contact him, Mr Corney did not attend. Deputy President Gooley noted that Bunnings had not filed its material per the direction to do so by noon on Monday, 24 April 2017 and that perhaps Mr Corney had not complied with his direction to file material due to Bunnings’ failure. Deputy President Gooley noted that she could not make those enquiries of Mr Corney due to his non-attendance at the hearing. Bunnings made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Corney had failed to comply with the direction of the Commission. Deputy President Gooley waived compliance with the Fair Work Commission Rules 2013 and accepted Bunnings’ oral application. Correspondence was then sent to Mr Corney, via email and post, informing him of Bunnings’ s.399A application. Mr Corney was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Monday 15 May 2017.

[8] As no material was filed with the Commission by the due date, on 16 May 2017 a voicemail was left for Mr Corney seeking an urgent return call in relation to the correspondence of 5 May 2017.

[9] On 18 May 2017, Bunnings’ representative, Mr Nicholas Barkatsas, copied the Commission into correspondence sent to Mr Corney. The email chain included an email of 16 May 2017 from Mr Corney to Mr Barkatsas where he said “[d]ue to work commitments working ten to eleven hour days, I’ve sent the letter back to you asking to allow to discontinue with the unfair dismissal. As I can’t find the time to persue this matter.” [direct quote] Mr Barkatsas’ email response to Mr Corney was that it is the Commission which must be notified if he wished to discontinue the matter.

[10] On each of 18 May, 19 May and 22 May 2017, the Commission left voicemail messages for Mr Corney seeking a return call. On 18 May 2017, my Associate attempted to contact Mr Corney via email correspondence. To date, Mr Corney has not responded to any of the Commission’s correspondence.

[11] 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.

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

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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Corney has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application, Mr Corney has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with directions or his non-attendance at the non compliance hearing. It would appear from his correspondence with the Victorian Chamber that he is no longer interested in pursuing his application. In these circumstances, I will exercise my discretion under s.399A(1)(b) and dismiss Mr Corney’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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