Robert Wood v Graphic Screen Prints Pty Ltd T/A GSP Print Pty Ltd

[2016] FWC 3680

[2016] FWC 3680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Wood
v
Graphic Screen Prints Pty Ltd T/A GSP Print Pty Ltd
(U2016/3777)

ARBITRATION ROSTER CANBERRA, 7 JUNE 2016

Application for relief from unfair dismissal - invalid application - application dismissed.

[1] Mr Robert Wood (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 11 January 2016 under s.394 of the Fair Work Act 2009 (the Act) alleging that termination of his employment by Graphic Screen Print T/A GPS Print Pty Ltd (the Respondent) was unfair.

[2] The matter was listed for conciliation on 1 March 2016 however the matter was not resolved. Consequently, directions were issued and the matter was listed for a hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 21 March 2016. This direction was not complied with and the matter was listed for a non compliance hearing by telephone before Deputy President Kovacic on 1 April 2016.

[4] Mr Wood did not make himself available for the non compliance hearing. Mr Tim McDonald, solicitor for the Respondent, made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Wood had failed to comply with the direction of the Fair Work Commission. Deputy President Kovacic waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[5] On 1 April 2016, Mr Wood was sent correspondence informing him of the Respondent’s section 399A application and he was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, on Friday, 8 April 2016. Mr Wood was advised that if he failed to comply with this direction, his application would be dismissed.

[6] On 8 April 2016 at 5.58pm, i.e. after close of business, Mr Wood emailed the Commission apologising for the delay in filing his paper work and stating that he was eager to proceed with his application. His email went on to state:

“Having recently fallen on family hardship. Due to my grandmothers ill health which required a stay at Coffs Harbour Base Hospital. Elaine Parker (my Grandmother) was there from the 5th of March until the 15th March.

When she was discharged from the hospital, she also required further need of home care until she regained her independence.

Unfortunately the situation left me without any related documents in regards to this matter and limited computer access.

All information can be confirmed by Coffs Harbour Base Hospital or if further proof is required I can forward a Statutory Declaration.

Please note all other required documents will be faxed Monday the 11th of March 2016, due to substantial pages being submitted.”

[7] Mr Wood provided no explanation for his non-attendance at the non compliance telephone hearing on 1 April 2016.

[8] On 11 April 2016 Mr Wood filed an outline of submissions and a witness statement.

[9] On 15 April 2016 Mr McDonald filed an objection to the application and sought the dismissal of Mr Wood’s application. The Respondent based their objection on grounds which include:

(a) failure to comply with directions;

(b) failure to attend the non compliance hearing;

(c) failure to provide any reasons by close of business 8 April 2016 and

(d) filed material which did not comply with the Directions by provide no evidence or material to support the Applicant’s reasons for non-compliance.

[10] 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.”

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

[12] I will determine the application on the papers.

[13] As Mr Wood yet again failed to respond to the Commission’s letter of 1 April 2016 within the timeframe specified and when he did respond failed to provide any material to support the reasons he relied upon for his failure to comply with directions, despite the letter specifically requesting that he do so, I find that his failure was unreasonable.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. In these circumstances, I will exercise my discretion and dismiss Mr Wood’s application. An order giving effect to this decision will be issued today.

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