Robert Steers v David Urquhart

[2020] FWC 1932

[2020] FWC 1932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Steers
v
David Urquhart
(U2020/44)

COMMISSIONER BISSETT MELBOURNE, 15 APRIL 2020

Application for an unfair dismissal remedy.

[1] On 2 January 2020 Mr Robert Steers (Applicant) made an application to the Fair Work Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant advised he was employed by David Urquhart (Respondent).

[2] Section 394(2) of the FW Act requires that an application for relief from unfair dismissal must be made within 21 days after the dismissal took effect. On his Form F2 Unfair Dismissal Application, the Applicant advised that he was notified of his dismissal on 22 November 2019.

[3] In their Form F3 Employer Response, the Respondent raised a jurisdictional objection that the application was made out of time as it was outside of the statutory time limit of 21 days.

[4] On 3 January 2020 the Commission contacted the Applicant on his nominated telephone number and left a voicemail message to confirm the email address written on the Form F2. The Applicant returned the Commission’s call later that day and confirmed his nominated email address for future correspondence.

[5] On 8 January 2020 the Commission emailed a Notice of Listing and acknowledgement letter to the Applicant’s nominated email address. This correspondence advised that the matter was listed for a conciliation conference on 13 February 2020. The correspondence also advised that the conciliation conference may take up to 2 hours.

[6] On 10 February 2020 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left requesting that the Applicant return the call to confirm his contact number for the conciliation conference. Later that day the Commission emailed correspondence to the Applicant’s nominated email address advising that in the absence of a confirmed contact number, the Commission would attempt to contact him on the number listed on his application for the conciliation conference.

[7] On 12 February 2020 the Commission sent an SMS message to the Applicant’s nominated telephone number reminding him of the conciliation conference listed for 13 February 2020.

[8] On 13 February 2020 the Commission contacted the Applicant on his nominated telephone number for the conciliation conference. The Applicant advised that he was at work and could not be on the phone longer than 10 minutes. The Commission advised the Applicant that he was asked to set aside 2 hours for the conciliation conference. The Applicant advised that he was not aware of this and requested the conciliation be rescheduled. The Commission advised that they would write to the Applicant and if he wished for the conciliation to be rescheduled, he would need to make himself available and would be required to provide reasons as to why he was not available for the first conciliation.

[9] Later that day the Commission emailed correspondence to the Applicant advising that if he wished for the matter to proceed to a further conciliation, he was required to email a request within 2 working days. The correspondence advised if the Commission did not hear back within that time, the matter would be referred for arbitration before a Member of the Commission.

[10] On 21 February 2020 the Commission attempted to contact the Applicant on his nominated telephone number. There was no answer.

[11] Later that day the Commission emailed correspondence to the Applicant advising that, as the Applicant did not contact the Commission, the matter was referred to be listed for Conference/Hearing.

[12] As the Respondent had raised the jurisdictional objection that the application was filed outside the 21-day statutory time limit, the matter was listed for Extension of Time Conference/Hearing on 17 April 2020. Directions were issued for the Applicant to file his submissions and evidence in support of his extension of time application by noon on 3 March 2020. No such material was received.

[13] On 3 March 2020 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left requesting the Applicant return the Commission’s call as soon as possible regarding his overdue submissions.

[14] On 4 March 2020 the Commission again attempted to contact the Applicant on his nominated telephone number. A further voicemail message was left requesting the Applicant return the Commission’s call as soon as possible regarding his overdue submissions.

[15] The Commission emailed correspondence to the Applicant’s nominated email address on the same day advising that his material had not been received and that he should contact the Commission by 3:00pm that day as the matter was at risk of being listed for a Non-Compliance Hearing which would take place on 6 March 2020.

[16] At 3:15pm on 4 March 2020 the Commission again attempted to contact the Applicant on his nominated telephone number. A further voicemail message was left requesting the Applicant return the Commission’s call as soon as possible regarding his overdue submissions.

[17] At 4:05pm on 4 March 2020 the Commission sent a Notice of Listing to the parties advising them that as no response from the Applicant was received, the matter was listed for Non-Compliance Hearing on 6 March 2020.

[18] On 5 March 2020 the Commission sent an SMS message to the Applicant’s nominated telephone number advising him to call the Commission as soon as possible.

[19] The Non-Compliance Hearing proceeded on 6 March 2020 before Commissioner McKinnon. The Applicant did not attend. The Commission attempted to telephone the Applicant twice and left two voicemail messages for the Applicant to return the Commission’s call. The Respondent’s representative made an oral application that the matter be dismissed due to the Applicant’s failure to comply with the directions of the Commission. Commissioner McKinnon determined to provide the Applicant with an extension of time to file his material.

[20] Following the Non-Compliance Hearing an amended Notice of Listing was sent to the Applicant’s nominated email address advising him that the Extension of Time Conference/Hearing was adjourned to 17 April 2020 and he had been granted an extension to file submissions and evidence to noon on 24 March 2020. The Notice of Listing advised that a failure by the Applicant to comply with the amended filing requirements may result in the application being dismissed for want of prosecution without further correspondence.

[21] On 17 March 2020 the Respondent’s representative forwarded email correspondence to the Commission that they had received directly from the Applicant. The email correspondence sent from the Applicant to the Respondent’s representative was sent from the same email address the Commission had been corresponding with. In the email correspondence, the Applicant raised concerns about his employment contract and the alleged quality of his work. The Applicant did not address the jurisdictional objection that his application was made out of time.

[22] On 19 March 2020 the Commission attempted again to contact the Applicant on his nominated telephone number. A further voicemail message was left requesting the Applicant return the Commission’s call as soon as possible regarding his overdue submissions.

[23] On 19 March 2020 the Commission emailed correspondence to the Applicant reminding him of the requirement to file submissions and evidence in relation to the jurisdictional objection that his application was made out of time. The correspondence advised that if he failed to comply with the filing requirements, the application may be dismissed for want of prosecution without further correspondence. The Commission provided hyperlinks to submission templates to assist in preparing submissions in relation to the jurisdictional objection.

[24] On 20 March 2020 the Applicant emailed correspondence to the Commission advising that he had sent all information he had to the Commission and does not have any further material to file.

[25] On 23 March 2020 the Commission emailed correspondence to the Applicant advising that as he had not lodged his application within the 21-day statutory time limit, he was required to file submissions in relation to this issue. The Commission again sent submission templates to assist in preparing submissions in relation to the jurisdictional objection. The correspondence again advised that failure to comply with the filing requirements may result in the application being dismissed for want of prosecution without further correspondence

[26] To date, the Applicant has not filed any material with the Commission and has not responded to the Commission’s correspondence and telephone messages or made any contact with the Commission regarding his application. He has taken no steps to prosecute his unfair dismissal application despite repeated attempts by the Commission to ascertain his intentions regarding the matter. The Applicant has failed to attend the conciliation and subsequent non-compliance hearing convened by the Commission regarding his application. Accordingly, I have decided to dismiss the Applicant’s application pursuant to s.587 of the FW Act.

[27] Section 587 of the FW Act states:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[28] I consider that as the Applicant has failed to prosecute his application, his application has no reasonable prospects of success. Accordingly, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 giving effect to this decision will be issued shortly.

COMMISSIONER

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